T A B L E O F C O N T E N T S
A. Vulnerable Groups Unnecessarily in Detention ........................................................................................3
A1. Detention of People Fleeing Persecution ..................................................................................................3
A2. Protecting the Most Vulnerable: Detention of Women and Children ........................................................18
B. Indefinite, Mandatory and Secret Evidence Detainees ..............................................................................24
B1. Indefinite Detainees ..................................................................................................................................24
B2. Mandatory Detention ..............................................................................................................................28
B3. Detention Based on Secret Evidence ........................................................................................................31
C. Conclusion ..............................................................................................................................................32
Glossary of Terms ............................................................................................................................................39
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS i
A C K N O W L E D G M E N T S
“T he Needless Detention of Immigrants in
the United States” is the fourth in a series
of reports produced by the Catholic Legal
Immigration Network, Inc. (CLINIC) on “at-risk”
Shirley Tang, Friedman & Siegelbaum;
Sue Weishar and Kathleen Harrison, Catholic Charities
of New Orleans;
immigrants. The series attempts to put a human face Wendy Young, Womens’ Commission for Refugee
on the difficulties faced by discrete populations of Women and Children.
immigrants in the United States. Past reports in this
This series would not have been possible without the
series have covered immigrant families, naturalization,
financial support of the Ford Foundation, the
and low-wage laborers.
Foundation for Child Development, Faye and Sandor
CLINIC, a subsidiary of the U.S. Catholic Conference, Strauss, and the Rosenberg Foundation. This report
provides legal support services to a network of 121 was also made possible (in part) by a grant from the
local Catholic immigration programs. CLINIC also Carnegie Corporation of New York. Finally, CLINIC
operates national legal service projects for “at-risk” could not have taken on this project without the
newcomers, including a six site program for immi- support and collaboration of its sister agency, the
grants in the “administrative” custody of the Migration and Refugee Services division of the U.S.
Immigration and Naturalization Service (INS). CLINIC Catholic Conference. Of course, the statements made
is one of the three founding agencies of the Detention in the report and the views expressed are solely
Watch Network, an affiliation of more than 100 CLINIC’s responsibility.
agencies that provide legal, pastoral, and social
CLINIC appreciates the many contributions it received
services to INS detainees.
in putting together this report. It hopes that the final
Since its inception in April 1999, this project has been product contributes, in part, to comprehensive reform
a collaborative one. CLINIC paralegal Molly McKenna of the INS detention system.
has brilliantly staffed the project; she has collected
many of the case studies and done much of the
research for this report. Donald Kerwin, CLINIC’s
Chief Operating Officer, wrote significant sections of
this report and pulled its various pieces into a cohesive
whole. Other significant contributors include Mark
von Sternberg, Juan Osuna, Mary McClenahan, Alicia
Triche, Helen Morris, and Tom Shea. Charles Wheeler
and Juan Osuna helped edit various versions of the
report. CLINIC’s detention attorneys provided most
of the report’s case studies. They are Denise Baez,
Mary Howells, Mary McClenahan, Tom Shea, Jill
Sheldon, Alicia Triche, Ferdinand Ubozoh, and Allison
Wannamaker. The following people also provided
case studies and key information:
David Cole, Georgetown University Law Center;
Chris Einolf, Lutheran Social Services of the National
Madeline Ellis, Morgan, Lewis & Bockius LLP;
Regis Fernandez, Reitman & Parsonnet;
Mark Messenbaugh, Davis, Polk & Wardwell;
Sr. Marlene Perrotte, Las Americas Refugee Asylum
ii REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
T H E N E E D L E S S D E T E N T I O N
O F I M M I G R A N T S I N
T H E U N I T E D S T A T E S :
Why Are We Locking Up Asylum-Seekers, Children, Stateless Persons, Long-Term
Permanent Residents, and Petty Offenders?
Photo Courtesy: INS
We hold these truths to be self-evident; that all men are created equal; that they are endowed by
their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of
happiness; that to secure these rights, governments are instituted ... The Declaration of Independence
I know not whether laws be right, // Or whether laws be wrong; // All that we know who lie in gaol
// Is that the wall is strong; // And that each day is like a year, // A year whose days are long.
Oscar Wilde, The Ballad of Reading Gaol
Over the last several years, human rights and work with detainees have come together in the
immigrant advocacy agencies have exhaustively docu- Detention Watch Network to identify and publicize
mented the shortcomings in the INS detention system. the problems that they witness each day.
Reports and articles have detailed significant problems
The same problems have surfaced with dispiriting
related to asylum-seekers,1 children,2 women,3
consistency in human rights reports, advocacy
indefinite detainees,4 mandatory detainees,5 immi-
meetings, and a steady stream of newspaper articles.
grants in local jails,6 the standards governing INS
Overcrowding, lack of privacy, and despair have
detainees and oversight of its contract facilities,7
become endemic throughout the INS system. Many
health care,8 immigrants in select INS processing
inmates languish in the same dormitory-style rooms,
centers and for-profit prisons,9 and particular ethnic
up to 23 hours a day, without educational or recre-
populations.10 Over the last five years, roughly 100
ational opportunities. The INS warehouses others in
legal, pastoral, health, and social service agencies who
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 1
remote locations, apart from their families and support security grounds;13 (2) virtually all asylum-seekers
services. Detainees face multiple hurdles in their who present themselves at the border but lack proper
mostly unsuccessful attempts to obtain counsel. Local documents, until they can demonstrate a “credible
jailers commingle immigrants with criminals serving fear” of persecution;14 (3) those seeking admission to
prison sentences, with predictable consequences for the United States who appear inadmissible for other
the immigrants. The INS system suffers from a than document problems15; (4) those ordered
shortage of pastoral services and the lack of a formal removed for 90 days or, if the person “conspires or
chaplaincy program. INS officials fail to communicate acts to prevent his removal,” for more than the 90-
even the most basic information to detainees about day “removal period.”16
their status and situation; detainees often cannot
The 1996 Immigration Act and its immediate prede-
reach the INS deportation officers assigned to their
cessor, the Antiterrorism and Effective Death Penalty
cases. Thousands face long-term detention, typically
Act of 1996 (“AEDPA”),17 also culminated a decade
in facilities designed for short-term use. Jailers fail to
of legislation that expanded the crimes for which
respect dietary restrictions and provide culturally inap-
immigrants could be removed and severely restricted
propriate food. Detainees receive medical care which
their ability to contest their removal based on their
ranges from perfunctory to the shockingly bad. Jailers
equitable ties to the United States.18 Under current
place draconian restrictions on visits by family
law, long-term permanent residents, with U.S. citizen
members, legal counsel, and human rights dele-
spouses and children, good jobs, and the absence of
gations. Immigrants abandon their legal claims to
any ties to their countries of birth, can now be
avoid further detention, only to remain detained for
deported for relatively minor crimes that they
weeks and months afterwards. The INS transfers
committed years before. The operative term for one
detainees frequently, often without reference to
category of crimes that trigger removal and
existing attorney-client relationships or other support
mandatory detention — “aggravated felonies” —
services. Jailers use segregation punitively, and occa-
encompasses serious felonies, but also less severe
sionally for transgressions that result from language
offenses like money laundering, tax evasion, fraud,
difficulties or mental illness. Guards verbally and
shop-lifting, receipt of stolen property, obstruction of
physically abuse detainees. Hunger strikes, suicide
justice, perjury, document fraud, smuggling family
attempts, and even riots occur with alarming
members into the country (in some cases), certain
gambling offenses, and illegal re-entry following
At this point, the severity and institutional nature of removal for an “aggravated felony.”19
the problems in the INS detention system cannot be
Locked up in a hodgepodge of INS “service
refuted. In effect, immigrants in “civil” custody face
processing” centers, for-profit prisons, federal prisons,
all the privations, inhumanity, and violence of prison.11
and local jails, this growing population of “civil”
Even under our current laws, this need not be the
detainees also includes unaccompanied children,
case. Thousands of immigrants in INS custody could
persons in indefinite custody because their countries
be released under supervision. In addition, the law’s
will not accept their return, persons with claims to
“mandatory detention” provisions could be satisfied
U.S. citizenship, torture survivors, and those fleeing
through home detention and other alternative forms
persecution in their home countries.
of custody. Lending the current system’s problems an
air of intractability is the seeming inability of INS The INS has informed CLINIC that, as of July 2000, it
headquarters, under the agency’s current structure, to detained 19,300 persons a day. The INS cannot be
enforce its detention policies on local INS district blamed for current laws that mandate the detention of
offices, much less on the jails and contract facilities the vast numbers of immigrants. The 1996 Immigration
INS uses to detain most of those in its custody. Act tied the hands of the INS in many ways, requiring
the agency to detain non-citizens who simply should
Despite its lamentable track record and failure to make
not be in custody and exacerbating what had long
even marginal progress on many of these issues over
been a crisis situation. The Act has already caused
the span of many years, Congress passed legislation in
untold suffering for thousands of persons, with no end
1996, the Illegal Immigration Reform and Immigrant
in sight. At the same time, the INS deserves abundant
Responsibility Act of 1996 (“the 1996 Immigration
criticism for: (1) its failure to exercise its discretion in a
Act”),12 that has nearly tripled the number of non-
principled, uniform manner to release those immi-
citizens in INS custody. The 1996 Immigration Act
grants it can; (2) its unconscionable failure to develop
requires the INS to detain: (1) virtually all immigrants
“alternatives-to-detention” that safeguard the public
inadmissible or deportable on criminal and national
2 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
and prevent immigrants from absconding; (3) its
failure to explore cost-effective alternative forms of
a. The Obligations of
detention (like home detention enforced through elec- the United States to
tronic monitoring or “tether” programs) that would
satisfy our law’s detention mandates. Asylum-Seekers
This report contributes to the now extensive literature The United States, along with more than 130 other
on the suffering caused by the INS detention system, countries, has agreed to be bound by international
with a particular focus on persons who should not be treaties that seek to protect refugees by guaranteeing
detained and the INS’s failure to pursue alternatives their right to apply for asylum. These include the 1951
for groups that it need not and should not detain. United Nations’ Convention relating to the Status of
Section A describes the detention of vulnerable Refugees and the 1967 United Nations’ Protocol
persons, including asylum seekers, women and relating to the Status of Refugees.21 The Refugee Act
children. Section B covers persons subject to of 1980 enshrined these international obligations in
mandatory and indefinite detention, as well as those domestic law.22 Under it, a person cannot be returned
detained based on secret evidence. Section C to a country where his or her life or freedom would be
recommends steps that could be taken to reform the threatened on account of race, religion, nationality,
INS detention system. membership in a particular social group, or political
opinion. Under international law, the United States
may not return individuals without providing an
A. VULNERABLE GROUPS interview regarding their status; “rejection at the
UNNECESSARILY IN frontier” is forbidden. Adding to its international
obligations, in 1994 the United States became a party
DETENTION to the United Nations’ Convention Against Torture23,
Detention represents a particularly unjust and unnec- which prohibits the return of persons to countries
essary response to thousands of non-citizens in INS where they would be in danger of torture, for
custody. Many should not be detained at all. For whatever reason.
others, detention should be a solution of last resort. The asylum process can be complicated and
While always difficult, detention causes particular exhausting to negotiate. Often, victims of human
anguish for certain populations because of their rights violations must provide extensive documen-
gender, age, and other characteristics. For example, tation and wait for years while government officials
confinement in correctional facilities with juvenile evaluate their cases. To complicate matters, both
delinquents can scar immigrant children for life. For international and domestic standards are constantly in
certain asylum-seekers, detention can evoke and even flux. The “expedited removal” system, discussed
mirror the conditions they fled. below, represents the 1996 Immigration Act’s most
egregious erosion of the U.S. asylum system.
1. Detention of People In 1996, Congress also introduced a one-year asylum
Fleeing Persecution filing deadline.24 As it stands, a person who wishes to
apply for asylum in the United States must do so
The United States has a long and proud history of within a year of his or her arrival. There are
offering refuge to persons fleeing persecution in their exceptions to this deadline, but these are narrow and
native lands. This tradition finds expression in the their interpretation remains uncertain. They include
Statue of Liberty’s welcome to the “huddled masses provisions permitting “late” filings if the individual can
yearning to breathe free.” With the world’s popu- show either “changed circumstances” that affected
lation of refugees and asylum-seekers exceeding 14 the person’s eligibility for asylum, or that the delay in
million at the end of 1999,20 the United States’ lead- filing was caused by “extraordinary circumstances.”25
ership in the areas of refugee protection and The latter can be shown, for example, by evidence
international human rights has never been more that the individual was the subject of a medical or
crucial. Unfortunately, the United States undermines physical restraint which rendered the timely filing of a
its international standing through its laws and policies claim beyond his or her control, or that he or she
related to those fleeing persecution. The detention of suffered from a legal disability (e.g., was an unaccom-
asylum-seekers, often for prolonged periods, offers an panied minor) that effectively prevented the filing.26
egregious example. Getting around the one-year deadline can be a
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 3
daunting task. Immigration Judges (known as “IJs”) been heard from since, and her attorneys and
and INS officers often require documentation that friends fear the worst.
many asylum seekers cannot secure.
Detainees face increased barriers in collecting evidence b. Expedited Removal
to support their claims. In the worst case scenario, The 1996 Immigration Act created a new “expedited
detention can prevent an asylum-seeker from removal” process to deter the filing of frivolous
presenting or establishing a claim, and can lead to his asylum claims. The law targets persons who arrive at
or her removal. Although the U.S. asylum system U.S. ports-of-entry with false travel documents or no
remains generous, new legal restrictions and documents. It allows the INS to return them without
procedural glitches serve to undermine its very a hearing.
After arrival and initial questioning by an INS officer,
Anguish Over Her Family Places persons subject to expedited removal are sent to
Asylum-Seeker in Peril “secondary inspection.” Unless they indicate a desire
to apply for asylum or express a fear of persecution in
“Mrs. D-” fled her native country, the their home country, immigrants processed at
Democratic Republic of the Congo (DRC), after secondary inspection face summary return to their last
her husband was tortured and killed due to his port of embarkation. If they do successfully convey
involvement in a pro-democracy movement.
their fears, they must then demonstrate that they
Smuggled out of the country by Catholic priests,
harbor a “credible fear” of persecution. At the
Mrs. D- was forced to leave behind her eight
children, ages 8 to 24. Four of these children credible fear interview, the individual must establish
were Mrs. D-’s by birth, two belonged to her that there is a significant possibility that he or she
husband by a prior marriage, and two were the could make out a legitimate claim for asylum. Prior to
adopted children of Mrs. D-’s deceased sister. a credible fear finding, the asylum-seeker must be
Upon her arrival in the United States, Mrs. D- detained.
filed an application for political asylum.
In fiscal years (FY) 1997-1999, the INS removed a
In January 1998, Mrs. D-’s asylum application total of 189,177 persons pursuant to the expedited
was “recommended” for approval. A “condi- removal process, which represents almost half of all
tional” grant means the asylum application will persons removed from the country during that
be approved, once the FBI verifies that the period.27 Over the same period, 14,951 persons were
asylum-seeker has no criminal record. In the referred for a credible fear interview; 88 percent of
meantime, however, the person cannot sponsor those referred were later determined to have satisfied
her immediate family members for admission to the credible fear standard.28
the United States. In the case of Mrs. D-, final
approval did not occur until one year after the A major problem with expedited removal has been the
“recommended” grant, due to problems in secrecy surrounding the secondary inspection process.
processing her fingerprints. Mrs. D-’s lawyer The only outside organization that has been allowed
wrote the INS five letters during this period and to observe the inspection process is the United
made repeated telephone calls. Once Mrs. D- Nations High Commissioner for Refugees (UNHCR).29
received final approval of her asylum application, The absence of effective monitoring leaves open the
an additional nine months passed while she possibility that asylum-seekers may be removed
sought visas for her children. Waiting periods like without a hearing on their claims — a potential
this have regrettably become the norm. violation of the prohibition against “rejection at the
frontier.” Apart from the concerns it raises from the
These delays placed Mrs. D- and her children in
perspective of international law, there is a growing
peril. In early 1999, Mrs. D- received word from
realization that expedited removal may not be
relatives in the DRC that her children, sick and
malnourished, were living just over the Congolese essential to deterring frivolous claims. Certain reforms
border in Rwanda. By the time she received this adopted by the INS in 1995 significantly reduced
news, Mrs. D- had been separated from her asylum filings, obviating the need for expedited
children for more than 18 months. The anguish removal.30 Overall, the number of new asylum appli-
caused by the separation proved too difficult for cations has declined 75 percent since 1993.31
her and Mrs. D- left the United States, returning
Another problem involves the extensive use of
to Africa to look for her children. She has not
detention throughout this process, which may be
4 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
inconsistent with the international obligations of the standards and quality of treatment to which they
United States. Article 31 of the 1951 Refugee are subjected.36
Convention provides that countries “shall not impose
Such statements may be looked to as both authori-
penalties, on account of their illegal entry or
tative interpretations of the Refugee Convention37 and
presence” on refugees arriving from countries in
illustrations of international opinion. Both Amnesty
which they fear persecution. It goes on to forbid
International and Human Rights Watch have also
states to apply any “restrictions” to the movements of
condemned U.S. policy regarding the detention of
refugees unless they are “necessary.”
U.S. law mandates that all arriving aliens seeking
Given the problems inherent in detaining asylum-
asylum must initially be held in detention if they are
seekers, one would expect the INS to pursue programs
not in possession of a visa or other proper entry
that offered alternatives to their confinement. In fact,
documents. As with other INS detainees, asylum-
the INS has recently funded a pilot program in New
seekers must endure prison-like conditions. In some
York that provided for the supervised release of
facilities, they have been subject to abuse.32 Family
asylum-seekers and others not subject to mandatory
members who arrive together are often split apart,
detention.39 The program sought to satisfy the only
even young children from their parents. Although the
valid rationale for detaining asylum-seekers — that is,
government calls this “civil detention,” from the
that they might abscond before appearing for their
asylum-seekers’ perspectives it is in fact a “penalty”
inflicted “on account of their illegal entry,” and thus
violates Article 31. The INS Fails to Build on Successful Pilot
The Vienna Convention on the Law of Treaties Program to Supervise Released Asylum-
requires that “every treaty in force…must be Seekers and to Assure Their Appearances
performed…in good faith” and that “[a] treaty shall in Court
be interpreted in good faith in accordance with the
ordinary meaning given its terms.”33 Detention of From February 1997 to March 31, 2000, the Vera
Institute for Justice administered a pilot project to
asylum-seekers in prison-like settings often rises to the
assure court appearances by immigrants in
level of persecution, and cannot be considered a good
removal proceedings. This “alternative-to-
faith interpretation of the Refugee Convention. At its detention” program provided intensive
heart, that Convention expresses a desire to protect supervision for non-citizens who would otherwise
refugees, as explained in its preamble: “The United have been detained. The program verified that
Nations has, on various occasions, manifested its potential participants had a community sponsor
profound concern for refugees and endeavored to and a fixed address, and screened them based on
assure refugees the widest possible exercise of … their community ties, compliance in prior immi-
fundamental rights and freedoms.” The United States’ gration proceedings, and potential danger to
practices do not manifest “profound concern,” but others. Intensive supervision consisted of
instead discourage the exercise of the right to “seek “mandatory personal and telephonic reporting,
and enjoy asylum” that is guaranteed in the United home visits (sometimes prearranged, sometimes
Nations’ Universal Declaration of Human Rights.34 not), and consistent monitoring of participants’
whereabouts and the progress of their cases.”40
Several international organizations have spoken out The program also provided information on the
against the detention of asylum-seekers; their legal process, made legal referrals, and accom-
statements may be considered persuasive evidence of panied participants to court hearings.
international opinion. Most notably, the UNHCR has
repeatedly expressed its disapproval of the detention The 165 persons subject to the program’s
of asylum-seekers.35 Its Executive Committee recently intensive supervision track included 83 asylum-
seekers in expedited removal, 16 immigrants that
had committed minor crimes, and 66 persons
arrested in work-site raids.41 Overall, 91 percent
In view of Article 31 of the 1951 Convention
of the intensively supervised immigrants appeared
relating to the Status of Refugees and the fact
for all of their required hearings, including 93
that the majority of asylum-seekers have not
percent of asylum-seekers.42 Only two asylum-
committed crimes — and indeed they are not
seekers failed to appear for the merits hearings in
suspected of having done so — their detention
their cases. Apart from its success in preventing
raises significant concern, both in relation to the
flight, intensive supervision cost only $12 a day
fundamental right to liberty, and because of the
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 5
per immigrant, compared to the $61 average limited visiting hours, visiting hours that are not
daily cost of detention.43 In short, the program honored, transfers of clients away from counsel, the
presented a humane and cost-effective alternative difficulty of reaching clients by phone, collect-call only
to detention. phone policies within facilities, the inability to conduct
attorney/client interviews in private, outdated or inac-
curate legal services lists, and long delays in waiting
for clients at the facilities. While the INS agreed to
implement most of the ABA-proposed standards in its
own detention facilities, it has thus far (1) refused to
enshrine those standards in a federal regulation, (2)
refused to extend the standards to local jails (that
house the majority of INS detainees), and (3) failed to
address severe telephone access problems in jails.
Apart from making it difficult to prepare an asylum
case, detention also discourages asylum-seekers from
continuing to pursue their claims, especially when they
must appeal negative decisions by IJs. The adminis-
Photo Courtesy: INS trative appeals process usually takes between 6 and
12 months, and sometimes longer. After months in
detention, many asylum-seekers opt to forego their
c. The Impact of Detention cases and submit to deportation with all its risks.46
on Asylum-Seekers The Prospect of Spending Another Year
Beyond its propriety under international law, the in Detention Prompts Refugee to Give
detention of asylum-seekers raises numerous practical Up Claim
difficulties. Of greatest concern, detention burdens
the ability to pursue asylum claims, and leads many to “Mr. K-,” an engineer in his late twenties, was
abandon their cases altogether.44 Most INS detention living a full life in Cameroon. His business
centers and contract facilities, particularly local jails, allowed him to provide for his wife and two
are located far away from family, legal, and other young sons. He was also politically active, and
support systems. Even facilities located in urban areas, had become a leader on the local level of the
like the for-profit facility in Elizabeth, New Jersey, Social Democratic Front (SDF), Cameroon’s oppo-
sition party. He knew that his political activities
cannot be easily reached by public transportation.
carried risks, but did not realize their severity until
Typically, detainees cannot collect the kind of docu-
government officials arrested several of his asso-
mentation necessary to support their claims. For ciates at a demonstration he had helped to
example, asylum cases invariably benefit from medical organize. After authorities came to his home to
affidavits setting forth a physician’s opinion as to arrest him, Mr. K- went into hiding.
whether injuries actually sustained are consistent with Subsequently, an article was published (with Mr.
the asylum-seeker’s account. Yet, statistics gathered K-’s photograph) reporting that he was wanted
by Physicians for Human Rights in Boston, by the police because of his anti-government
Massachusetts, indicate that detention hinders the activities. At this point, Mr. K- fled the country.
ability to obtain such affidavits. Between July 1, 1999
and December 31, 1999, Physicians for Human Rights He arrived in the United States in September
serviced 73 percent of requests for medical affidavits 1997 and requested political asylum. He was
transferred to an INS detention center, where he
for asylum-seekers not detained, but only 50 percent
spent the next four and a half months. Mr. K-
of requests by detainees.45
had a strong asylum case. At the judge’s request,
Legal libraries in prisons tend to be outdated, and his lawyer obtained from the U.S. Embassy in
often do not include current materials on immigration Cameroon a copy of the newspaper article on his
laws and procedures. If counsel can be obtained, he anti-government activities. The U.S. Embassy
or she must overcome a range of barriers to effective also put Mr. K-’s lawyer in touch with a high-level
SDF official who verified, in writing, Mr. K-’s
representation. Proposed standards, developed by the
status in the party. Notwithstanding this
American Bar Association (ABA), attempt to address
evidence, the IJ denied his claim.
legal access problems that have historically included
6 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
Mr. K-’s attorney urged him to appeal the judge’s return Mr. A- to the detention center to verify the
denial. She thought that the Board of status of his appeal. One month later, when it
Immigration Appeals (BIA) would see the injustice became clear that Mr. A- did not have an appeal
of the judge’s decision and reverse it. However, pending, the INS attempted to deport him again.
Mr. K- did not want to appeal because he could Again, Mr. A- was handcuffed, but this time he
not face the prospect of spending another year in refused to cooperate and was placed in “segre-
detention. The long months in detention had gation.” He was confined to a small cell without
sapped him of his confidence and resolve, and by windows, with nothing to read and no human
the time his case was denied in January, he was contact. After three days, Mr. A- was returned to
desperate to be released. Mr. K- was deported to his dormitory. At this time, he contacted his
Europe on February 15, 1998. On June 24, 1999, attorney, who admitted to him that no appeal
he was granted asylum in France. had been filed. Mr. A- then immediately
contacted the UNHCR, which advised him that he
Many flee to the United States in the hope that they could file an application for protection under the
will be provided a fair opportunity to show that their Convention Against Torture, which he did. One
rights have been violated. Some have spent time in week later, detention officials again told Mr. A-
prison because of their political or religious beliefs. that he was going to be deported. UNHCR
Many have been tortured by prison guards, soldiers, contacted Mr. A-’s deportation officer and
and others. Others have lost family members, friends, explained that a Torture Convention claim was
and colleagues to violence. For such persons, pending. As a result, the INS agreed to suspend
detention invariably comes as a shock and can evoke the deportation.
the very conditions that they fled.
Mr. A- obtained a new lawyer who assisted him
Caught in a Web, Through No Fault of in filing a “motion to reopen” his asylum case
His Own based in part on changed country conditions. An
IJ granted the motion. By now, after a year in
“Mr. A-” is a native and citizen of the DRC. He detention, Mr. A- found his continued detention
fled the regime of Laurent Kabila in fear of perse- difficult to endure. While detained, Mr. A- was
cution for having worked in housing projects for allowed only one hour of recreation each day in
the former regime of Mobutu Sese Seko. an “outside” courtyard with very high walls and
a heavily screened roof. Mr. A- left the facility
Mr. A- had been arrested, imprisoned and only on his periodic trips to the airport and once
tortured for three days by the Kabila government. to be hospitalized. He could receive visitors only
Unable to obtain a passport from the government one day a week, and then for only 30 minutes at
he was fleeing, Mr. A- attempted to enter the a time.
United States with a passport that did not belong
to him. At the airport, he spent 17 hours hand- Like others in the facility, Mr. A- saw no need for
cuffed and shackled to a stool in a small room. his continued confinement, especially since his
He passed a credible fear interview and was sent case had been reopened and he had shown that,
to a detention facility. After three adjournments under the new circumstances in the DRC, he had
caused by Mr. A-’s inability to obtain an attorney, a legitimate asylum case. He decided to join a
an IJ denied his claim. Mr. A-’s detention made it hunger strike protesting the harsh conditions at
difficult for him to secure qualified legal counsel. the facility and the INS’s unjust release policies.
He was ultimately forced to settle for a lawyer On the 14th day of the strike, prison officials
who knew very little about his case, had visited placed Mr. A- and other participants in solitary
Mr. A- only once prior to the proceeding, and confinement for one week. Mr. A- only drank
presented no evidence about the conditions in water during this period. By the last day of his
the DRC. The lawyer also failed to appeal the confinement, he attempted to commit suicide by
decision, despite having told Mr. A- that an swallowing Ben Gay and Tylenol. A guard
appeal would be filed. noticed him lying on the floor next to the empty
Ben Gay container. He was shackled, handcuffed
After the IJ’s decision, the INS twice tried to and taken to the emergency room of a nearby
remove Mr. A- from the United States. On the hospital. He remained in the hospital for two
first occasion, officials handcuffed him, humil- days, chained to the hospital bed.
iating him before other travelers passing through
the airport. During the ride from the airport After his condition stabilized, Mr. A- was returned
terminal to the plane, the officials were told to to the detention facility. The INS promised to
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 7
review the strikers’ cases and to release those Against Torture in the United States. At the
found deserving of parole, but apparently this hearing, the IJ granted Mr. Z-’s application for
never occurred. In July 1999, Mr. A- participated relief, finding in part that those taken into
in another hunger strike, this one lasting a week. custody in Sudan routinely face torture and
Some of the strikers were transferred to human rights abuses. By this point, Mr. Z- had
maximum security jails. The remaining partic- been confined for more than a year.
ipants, fearing transfer to facilities where they
would be housed with criminals, gave up the The detention of torture survivors, like Mr. Z- and Mr.
strike. A-, is cruel and inappropriate. The United States has
ratified the Convention Against Torture and Other
In September 1999, almost two years after he Cruel, Inhuman, or Degrading Treatment or
requested asylum, an IJ approved Mr. A-’s claim. Punishment, and in 1998 it implemented that treaty.
Upon his release, nine days later, Mr. A- filed for The Convention Against Torture prohibits the return of
a work permit and a social security card. He those who have “good reasons” for believing that
received his work permit five weeks later. When they would be tortured if they were returned to their
Mr. A-’s social security card finally arrived in mid- home countries. Torture survivors often find detention
November, he found a job working at the in the United States especially traumatic because
reception desk of a youth hostel. prison reminds them of what happened to them in
As Mr. A-’s case demonstrates, detention takes a their own countries. Handcuffs, leg irons, belly chains,
particular toll on asylum-seekers who typically cannot prison jumpsuits, strip searches, and abusive guards
understand why they are being “punished.” There can summon painful memories and trigger post-
were numerous junctures in Mr. A-’s case when traumatic stress disorder.
release would have been appropriate: (1) when Mr. A-
passed his credible fear screening; (2) when it became Three Years Lost in INS Detention Prior
clear that he qualified for protection under the to Obtaining Asylum
Convention Against Torture; and (3) when the IJ
“Mr. E-,” a 41-year-old Kenyan, opposed the
granted his second attorney’s motion to reopen. The
government in his home country. After being
fact that none of these events prompted the INS to arrested at a demonstration, he spent five years
release Mr. A- raises fundamental questions about the in a Kenyan prison where the authorities beat him
system. with rifle butts and burned his skin with hot metal
pliers. After his release, members of the oppo-
Detained For More Than a Year, Despite sition party held him illegally for nine months
Committing No Crime because they accused him of revealing party
secrets. When he managed to escape, he fled
“Mr. Z-,” a Sudanese national, was detained in the country.
the United States after indicating that he wished
to apply for asylum. He based his claim on both Mr. E- arrived in the United States as a stowaway
the harm he feared because he refused to be in early 1997. He requested asylum and was
drafted into the Sudanese national army and transferred to an INS detention center. Mr. E-
persecution he had already suffered at the hands could not afford an attorney. Although he had
of Sudanese rebels when he refused to let them only a seventh grade education, he was forced to
appropriate his family’s livestock. Mr. Z- had represent himself in immigration court. Not
been brutally attacked by the insurgents, as surprisingly, the judge denied his claim. Mr. E-
attested to by a series of marks on his back. His appealed the decision. A year and a half later,
detention, however, made it difficult to schedule the BIA sent Mr. E-’s case back to the IJ, who
a medical interview and a medical report was not denied it again. Mr. E- appealed a second time.
available on the day of his asylum hearing. The IJ The entire process took more than three years.
denied his asylum application.
Mr. E-’s time in detention was extremely difficult
The rejection of his claim left Mr. Z- in anguish. for him. He had terrible memories of the torture
He could not comprehend what purpose his he had suffered and detention made it harder for
detention served. Ultimately, he requested to be him to overcome this trauma. At times, Mr. E-
deported to the United Kingdom, rather than to became so depressed that he lost hope. He
continue life in the detention facility. When the attempted suicide more than once. After two
United Kingdom refused to accept Mr. Z-, he and a half years at the INS detention facility, the
agreed to pursue a claim under the Convention INS transferred him to a county prison in a
8 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
different state. Although Mr. E- was held with the parents have been removed from the United
criminals at the county prison, he preferred it to States. Even if the INS eventually releases the parents,
the INS detention center because he had the the family is typically in far worse condition for having
chance to go outdoors. gone through the experience.
In March 2000, the BIA granted Mr. E-’s asylum Husband and Wife Detained in Separate
request. When he was released a few days later, Pods and Away From Their Children
after three years in detention, he kissed the
ground in front of the prison. In March 1998, the INS took “Mr. and Mrs. M-”,
Detention particularly devastates families who must political asylum-seekers from El Salvador, into its
custody, leaving their 21- and 18-year-old
wait months or even years for their loved ones to be
daughters and a 16-year-old son to fend for
released. Beyond the emotional distress caused by
themselves. For 16 months, Mr. and Mrs. M-
separation, family members on the outside often face lived in (separate) overcrowded “detention”
grave economic hardship. In other cases, the INS pods, where they were required to stay — to
detains entire families, but in different locations and sleep, eat, shower, and use the bathroom — 23
often fails to inform them of the others’ fate. hours a day. Separated from each other and from
their children, Mr. and Mrs. M- tried to maintain
Unreasonable Detention Policies Split their spirits through Bible study and helping other
Up Family Fleeing Persecution detainees.47 Apart from the absence of privacy,
they endured shoddy medical care and, in the
“Mr. and Mrs. D-” arrived at an international husband’s case, threats from gang members. Mrs.
airport in the United States without proper docu- M- now tests positive for tuberculosis. In fact,
mentation after fleeing Algeria. Because Mrs. D- exposure to tuberculosis and other infectious
had worked for the Algerian government, she diseases threatens to reach crisis proportions in
had been repeatedly harassed and threatened by teeming INS facilities.48 Mr. M-, in turn, nearly
Islamic extremists, who not only viewed her as an died from a burst appendix that the detention
enemy, but also believed that women did not authorities neglected to treat for two days.
belong in the workplace. Immediately upon their According to the couple, the facility’s health clinic
arrival in the United States, Mrs. D- and her typically provided detainees with Tylenol,
husband expressed a desire to apply for asylum. whatever their symptoms.
While still at the airport, the INS arrested them.
It then placed them in different facilities without Prior to their detention, the family owned a
telling them what was happening to the other. triplex, living in one unit and renting the other
When Mr. and Mrs. D- eventually tracked each two. Without their parents, the children could
other down, officials prohibited them from seeing not meet the mortgage payments, and were
or telephoning each other. Although Mrs. D- evicted in November 1998. After their eviction,
wrote to Mr. D-, he did not receive her letters. the oldest child dropped out of college and took
part-time work as a parking attendant to support
The INS later removed Mrs. D- from the her siblings. She lived with friends. The second
detention facility and placed her in a jail with daughter cleaned, cooked, did laundry and cared
inmates serving criminal sentences. During her for two children, in return for lodging for her
five weeks in detention, Mrs. D- became severely brother and herself. Mr. and Mrs. M- sent the
depressed. Once released, she had no children any money they could scrape together
knowledge of her surroundings, no place to go by selling their food rations and artwork to other
and no money. In addition, the INS neglected to detainees.
provide her with information on her husband’s
status. Since the INS did not provide advance In July 1999, the couple was released from
notice that Mrs. D- would be released, there was detention, without work, a home, health
no opportunity to make living arrangements for insurance, or means of support. One week prior
her. Mrs. D- left detention scared and confused. to their release, each underwent a medical exami-
nation that included chest x-rays. While Mrs. M-
The INS released Mr. D in July 1999, one week was only x-rayed once, Mr. M- received x-rays on
after his wife. They will soon have a hearing on four consecutive days. Mr. M- requested his
their asylum claims. medical records, but did not receive them and
was assured that “no news is good news.” In
In many cases, children must fend for themselves until
January 2000, after his release, Mr. M- developed
their parents are released from custody or even after
a severe cough. A second round of x-rays
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 9
revealed a cancerous tumor in his lung. In early (release) based on urgent humanitarian reasons or
February, doctors removed half of his lung. The significant public benefit.50 Yet, inconsistent release
doctors have told Mr. M- that a tumor of the size practices have plagued the expedited removal process
removed could not have developed in the six from the outset.51 Significant numbers of asylum-
months since his release from detention. seekers have been unnecessarily detained for months
The INS detention system often fails to accommodate or years because certain INS districts arbitrarily refuse
the religious practices and other unique needs of those to release them. INS headquarters’ failure or inability
in its custody. to enforce uniform release policies has been abun-
dantly documented, as have the shifting release
Moslem Somali Youth Observing practices of local district offices. In 1998, the INS
Ramadan Placed in 24-Hour Lock-Down districts in Miami, Los Angeles, New York, and New
Jersey each changed their release policies.52 In 1997,
On November 28, 1999, “Mr. H-,” a 17-year-old individuals who passed the credible fear screening
Somali, arrived at a U.S. airport and requested were generally denied parole everywhere but in New
asylum. He had been persecuted due to his Jersey. Starting in 1998, the INS began to release
membership in the Midgaan clan, an ethnic
asylum-seekers in these other sites.53 Release became
minority considered “untouchable” in Somalia.
almost automatic for detainees in Miami.54 Some
His mother was from another ethnic group, and
married his Midgaan father against the will of her districts currently parole very few detainees. In FY
family. She and her husband had been killed 1999, for example, only about nine percent of
because of their marriage. asylum-seekers held in the Elizabeth Detention Center
in New Jersey were released from detention.55
Although Mr. H- had no criminal history, the INS
In short, custody determinations often turn on where
detained him at a state correctional center,
and when the person is detained, rather than the
placing him in a medium security unit with adults
serving criminal sentences. A devout Moslem, equities of his or her case. Certain INS districts
Mr. H- was observing Ramadan and could not eat regularly refuse parole to qualified applicants. Others
during daylight hours. One evening, he was normally release asylum-seekers who meet the
served ham (which he could not eat) for dinner. requirements. In recent years, the New Jersey and
On another occasion, he tried to save a chicken New York INS districts have been particularly intran-
sandwich served at lunch for his dinner. For this, sigent in their refusal to release bona fide
he was punished with 24-hour lock-down in his asylum-seekers.56 As human rights agencies have
cell. documented, many of these persons receive asylum
after months in detention at taxpayer expense.57
On December 18, 1999, he was released from Adding insult to injury, in some cases, the INS does
detention to stay with his cousin. His asylum
not ultimately contest their asylum cases. In effect,
case will be heard soon.
such persons have been detained for no reason at
d. The Need for Consistently
INS Needlessly Detains Asylum-Seeker
Generous INS Release Later Granted Asylum
Practices “Mr. F-,” a 23-year-old asylum-seeker from
Although the law requires the INS to detain asylum Somalia, was held for more than four months in
seekers who arrive at airports without proper INS detention. He was denied parole even
documents, it also presumes that the INS will release though he had passed a preliminary screening
those who have passed the credible fear screening. interview, had established his identity, had a U.S.
citizen cousin willing to care for him, and had no
INS detention guidelines state that “it is INS policy to
favor release” for asylum-seekers who can meet these
requirements.49 Released asylum-seekers can pursue
Mr. F- fled Somalia after a bomb was thrown into
their cases while living with relatives or friends who his home by members of the majority Hawiye
have legal status in the country. clan militia. The bomb killed his father and
In theory, all INS districts should follow the same severely burned Mr. F-’s face and hands.
release standards. The statute provides for parole Neighbors hid Mr. F- for months while his
wounds healed. He then fled Somalia. Mr. F-’s
10 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
mother, who militia members later attempted to where he ate, slept, showered, and used the
rape, remains in hiding. The bombing culminated toilet (without any privacy). He could never go
a series of attacks against his family and other outside, but only to a room with high walls and a
members of the Meheri clan. On one occasion, partially open ceiling covered with wire. His
Hawiye militia members had severely beaten Mr. friends and family could visit him through thick
F-’s father when he attempted to stop them from glass in the non-contact visitation area for no
sexually assaulting his wife. Mr. F- was tied up more than one or two hours a week.
and held in another room during the attack. He
heard his mother’s cries and his father begging After an INS officer determined that Mr. L- had a
the men not to harm his family. credible fear of persecution, his attorneys
requested that he be paroled from detention to
In detention, Mr. F- was plagued with memories the care of his family and friends. He has six
of the horrors he had faced. He suffered from cousins in the United States, one a U.S. citizen
migraine headaches, had difficulty sleeping, and and the others permanent residents. His parole
woke up with images of his family’s persecution request was supported by a U.S. citizen family
fresh in his mind. In addition, the skin on his member who lived nearby and a family friend
body that had been burned often caused him who was a city engineer. Notwithstanding these
pain. ties, the INS refused to release Mr. L-. After
three months, an IJ granted him asylum.
If released, Mr. F- would have been able to seek
therapy. Instead, months of detention
compounded his trauma. After more than four
months, he was granted asylum and released.
Release determinations should not turn on the
vagaries of geography or the idiosyncracies of local
INS officials. There should be a national policy
mandating the release of bona fide asylum-seekers
and this policy should be uniformly applied. It is
particularly cruel to detain asylum seekers who have
family or friends willing to house and care for them.
Political Prisoner Flees to the United
States, Where He Finds Detention
Instead of Freedom
“Mr. L-” was a pro-democracy activist in his
native Nigeria. His beliefs led him to organize
demonstrations against Nigeria’s notoriously
corrupt military government. He was involved in
rallies protesting the assassination of former
president Abiola’s wife, as well as the suspicious Photo Courtesy: INS
death of Chief Abiola in prison. Because of Mr.
L-’s activities, he was repeatedly arrested and
severely beaten by authorities. After the military e. Lack of Access to Legal
government detained Mr. L- and killed his
brother, Mr. L- fled from Nigeria. Unable to
Assistance for Detained
obtain travel documents from the government Asylum-Seekers
that was persecuting him, Mr. L- arrived at the
United States without proper documents and Most detained asylum-seekers cannot obtain legal
requested asylum. representation, although this can make all the
difference in the outcome of their cases. In 1999, 506
Mr. L- was taken in handcuffs to an INS of 2,072 (almost 25 percent) of represented detainees
detention center where officials strip-searched who applied were granted asylum. In the same year,
him and forced him to change into a prison only 40 of 1,172 (3.4 percent) of unrepresented
jumpsuit. From that point on, he faced detainees received asylum.59
confinement 22 hours a day in the same room
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 11
Immigrants in removal proceedings enjoy a statutory Because representing detainees is time-consuming and
privilege of legal counsel, but “at no expense to the costly, private attorneys often charge more than their
government.”60 According to the INS, this language normal rates and nonprofit agencies cannot accept
does not preclude government funding to support significant numbers of these cases. As a result, large
immigrant legal services.61 However, a different numbers of detainees go to court unrepresented.66
statute bars federal agencies from employing counsel
The problem is compounded for immigrants detained
“for the conduct of litigation in which the United
in remote locations. For example, the 1,000-bed
States, an agency, or employee thereof is a party, or is
Bureau of Prisons (BOP) facility used by the INS in
interested.”62 The INS has concluded that in combi-
Oakdale, Louisiana is two and a half hours away from
nation these provisions prohibit “using appropriated
the nearest major city, Baton Rouge. No free legal
funds to pay the salaries of persons representing
services are currently available to detainees at
aliens.”63 At the same time, it concedes that the
Oakdale, and only one private immigration lawyer
federal government can fund “things that will
regularly goes to the facility. Detainees in remote
facilitate aliens obtaining representation.”64
county jails face the same dilemma.
Executive Office for Immigration Review
Mozambican Asylum-Seeker Detained
Fails to Build on Successful Pilot Project
for Three Years in Remote Arizona
to Provide “Legal Rights” Presentations
“Mr. S-,” a 29-year-old asylum-seeker from
In the summer of 1998, the Executive Office for Mozambique, has been detained for more than
Immigration Review (EOIR), the division of the three years in Eloy, Arizona. Because an IJ
Department of Justice that oversees IJs and the mistakenly found Mr. S- barred from applying for
BIA, funded a modest pilot project that provided asylum, he has never been able to present his
“legal rights” presentations to detainees in three claim. Because he was poor and detained in a
sites. The project sought to determine whether remote location, Mr. S- could not find a lawyer.
informing INS detainees of their “legal rights” The Eloy facility is located in the middle of the
would have any impact on representation rates, desert; until recently few free legal services were
the efficiency of deportation proceedings, or INS available to detainees there.
detention expenditures. The project took place
over a 90-day period at the Florence, Arizona Mr. S- and his family fought in the Mozambican
detention facility (staffed by the Florence civil war. His father was a well-known local
Immigration and Refugee Project), the San Pedro leader of the Mozambican National Resistance
INS Processing Center in Los Angeles (staffed by (RENAMO), which opposed the communist
CLINIC), and the Port Isabel INS Processing government. Mr. S- himself had been a
Center in Harlingen, Texas (staffed by the South RENAMO soldier since age 14. After his parents
Texas Pro Bono Asylum Representation Project). were captured and killed, the authorities began
looking for Mr. S-. He fled the country, and
In its program evaluation, the EOIR concluded eventually made his way to the United States.
that the “rights presentations” benefitted the
detainees, the INS, and IJs.65 Detainees bene- Mr. S- crossed the U.S.-Mexico border with no
fitted from accurate legal information and documents, no money, and nowhere to go. He
increased rates of legal representation. The INS approached a church in an Arizona border town,
benefitted from reduced anxiety among detainees hoping for assistance. Finding no one there, he
and decreased detention costs, as the “rights took a bicycle that was leaning against the wall.
presentations” convinced many to abandon their When he returned the bicycle, he was arrested
cases since they did not have viable legal claims. and charged with burglary. He pled guilty and
IJs, in turn, were able to complete more cases in a was sentenced to 80 days in jail and three years
summary fashion and benefitted from immigrants probation. He was then turned over to the INS,
who came to their hearings informed about the taken to the Eloy facility, and placed in depor-
process and the law. The report estimated that it tation proceedings.
would cost $1.3 million to expand the project
nationwide. Although a humane, cost-effective At Eloy, Mr. S- could not find a lawyer to
program, EOIR apparently has no plans to represent him for a price he could afford. No pro
replicate it. bono lawyers were available. At what was
supposed to be Mr. S-’s final hearing, the IJ told
12 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
him that he was barred from applying for asylum.
Under a new law, the judge maintained, Mr. S-
f. Inadequate Health Care
was considered an aggravated felon. In fact, the
judge was mistaken, which an immigration lawyer
and Failure to Release
could have brought to his attention. However, Those with Severe
Mr. S- was unable to defend himself and, as a
result, he spent the next three years in detention. Medical Conditions
His 1999 request for protection under the
The shoddy and occasionally life-threatening health
Convention Against Torture was denied. When
care provided to immigrants has been a consistent
he finally obtained legal representation, his lawyer
appealed his case to the BIA, where it is currently theme in human rights reports on the INS detention
pending.67 system over the last decade.69 Recent reports indicate
that, if anything, the quality of care has deteriorated
Some INS detainees try to represent themselves, but in recent years.
even if their prison happens to have an updated legal
library with immigration materials (and most local jails In 1998, for example, Human Rights Watch found
do not), few can master the complex legal procedures extreme problems in the medical care provided to INS
and standards that apply to their cases. detainees in local jails, including “lack of prompt
treatment, requirements that detainees pay for
Detainees also face problems with new procedures for medical treatment, inadequate diagnosis or treatment
conducting removal hearings. In particular, removal of mental problems, inability to communicate with
hearings are increasingly being held by video- detainees seeking medical treatment, and a dental
conference.68 In these cases, the judge and the policy in which extraction is the sole remedy for every
detainee observe and speak to each other through dental problem.”70 The report identified poor
monitors in both the court and the detention center. management as the source of these problems,
The INS trial attorney likewise remains in the court concluding that “INS has no discernible policy
room. The detainee’s counsel may appear in person regarding which medical services should or should not
or telephonically. be provided by local jails.”71 A recent investigation by
The INS and EOIR view video-conferencing as a tool the DOJ’s Civil Rights Division regarding the medical
to provide removal hearings for non-citizens who are care provided to inmates in one INS contract facility,
serving criminal sentences, obviating the need to the Jackson County Correctional Facility in Florida,
transfer them to an INS detention facility. In this way, uncovered significant problems in “access to care;
the INS hopes to facilitate the deportation of physician supervision of medical care; medication
detainees not eligible for relief from removal. access and management; chronic illness management;
emergency/urgent care; infectious disease control;
Video hearings put asylum-seekers at a distinct disad- mental health care; care and supervision of isolated or
vantage. An in-person hearing affords an restrained inmates; and medical diets.”72
asylum-seeker a better opportunity to establish a
human connection with the judge and to demonstrate In 1999, Amnesty International concluded that the
his or her credibility. Video-conferencing also interferes INS violated international standards for the treatment
with a detainee’s right to counsel because it allows the of detainees by failing to determine whether asylum-
INS to keep a detainee at a distant location, away seekers in its custody had been tortured and, as a
from counsel and other support systems. If the consequence, failing to take appropriate steps to
detainee can secure counsel at all in these circum- manage their trauma.73 The report found that the INS
stances, pre-trial attorney/client contact is limited. victimized many asylum-seekers by placing them in
The ability to examine witnesses, object to questions solitary confinement for behavior caused by past
by the INS, and otherwise provide adequate represen- trauma.74
tation at the hearing may also be compromised. The additional stress placed on the INS system by
mandatory detention does not bode well for improved
medical care in the future. The cases of Mr. and Mrs.
M-, discussed above, illustrate the increased risk of
contracting infectious diseases (like tuberculosis) and
the inability of detainees to obtain appropriate care in
overcrowded facilities. Language difficulties often
exacerbate problems in medical treatment. New
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 13
arrivals often do not speak English. While the U.S. Asylum-Seeker Who Is More Than Seven
Public Health Service, which provides medical services Months Pregnant Nearly Goes into Labor
in many facilities, can use telephone interpreters to in Detention
communicate with detainees in their own languages,
doctors and nurses often insist on speaking in English. “Mrs. I-” fled her home country, Nigeria, in order
The INS also continues to detain asylum-seekers who to seek asylum in the United States. When she
should be released for medical reasons. arrived, although she was seven and a half
months pregnant, the INS detained her. For more
Asylum-Seeker with Facial Paralysis than four days, she suffered from a high fever
Cannot Communicate with Doctor and vomiting. After five days in detention, she
went into false labor and the INS finally took her
“Mr. H-,” a young Somali, came to the United to a local hospital. Although the law generally
States to apply for asylum. He belongs to a small prohibits the release of asylum-seekers before
minority clan in Somalia, and feared persecution they have passed the credible fear screening, in
from the large clan militias that fight for control this case the INS could have released Mrs. I-
over the country. One of these militias under regulations that allow for parole “to meet a
imprisoned and tortured Mr. H-, and killed his medical emergency.” After Mrs. I-’s condition
father. Mr. H- eventually made his way out of stabilized, the INS attempted to take her into
the country, and bought a ticket to the United custody again, but the hospital refused to release
States. He had to buy travel documents because her because of her medical condition. Ultimately,
Somalia had no government that could validly Mrs. I- received parole on humanitarian grounds,
issue them. Upon arriving at an international allowing her to live with her relatives in the
airport, he was transferred to a detention facility. United States.
After almost five months, Mr. H- was still waiting
in detention for his asylum hearing. One
afternoon, while brushing his teeth, he was
suddenly unable to move the muscles on the
right side of his face, which felt completely numb.
He panicked, and with the help of another Somali
detainee, asked to see a doctor. The nurse who
examined him later that night did not make a
diagnosis, but told him that he needed to see a
doctor. Yet, three days passed without Mr. H-
seeing a doctor. During that time, Mr. H- was
terrified that he had suffered a stroke. On the
fourth day, a doctor finally examined him. Mr. H-
does not speak or read English, so he asked for
an interpreter. The doctor refused. Although the
doctor diagnosed Mr. H- with Bell’s palsy, which
Photo Courtesy: INS
is not a serious condition, Mr. H- was not able to
understand the diagnosis. During subsequent
medical examinations, public health personnel
consistently refused Mr. H-’s requests for an inter-
g. Lack of Access to Pastoral
preter. Mr. H- remained confused and fearful, Care and Social Services
and was often unable to sleep at night because
he was so worried about his health. Immigration detainees experience loneliness, frus-
tration, confusion, and despair. Like prisoners serving
Mr. H-’s paralysis and numbness went away after criminal sentences, they are separated from friends
a few weeks. However, he reports that the expe- and family and face the daily indignities of incar-
rience was the most frightening and ceration. They also face the additional stress of
dehumanizing aspect of his detention. After uncertainty. Unlike criminal prisoners, INS detainees
more than eight months in detention, Mr. H- was cannot predict the length of their detention. Even
granted asylum and released. worse, they do not know if they will ultimately be
released or deported to a country where they might
be persecuted. In these circumstances, the assistance
of pastoral and social workers can make all the
14 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
difference. Unfortunately, the INS does not have a
formal chaplaincy program for those in its custody
and, as a result, many detainees do not have access to The physical conditions at detention facilities,
pastoral services. including overcrowding and the resulting lack of
privacy, drive many detainees to despair. At the
INS Terminates English Classes and Elizabeth Detention Center in New Jersey, which the
Bible Study for Asylum-Seekers INS considers a model facility, asylum-seekers spend
22 hours a day in the same room. In that room, as
“Ms. R-,” a single mother of twins, came to the many as 40 people eat, sleep, shower, and use the
United States in February 1997. When she bathroom. They must use the toilets and showers in
arrived at the airport and asked for asylum, she
plain view of other detainees and guards. They can
was handcuffed and transferred to a detention
never go outdoors, only to an indoor room with a
center. Ms. R-’s asylum claim has twice been
denied by an IJ, and her case is currently on partially-open ceiling that is covered with a chain-link
appeal. Although she has no criminal record, Ms. fence. Some men and women have been living in
R- has spent more than three years in INS these conditions for more than two years.
detention. She wears a prison uniform, and The INS’s Krome Service Processing Center in Miami
sleeps, eats, showers, and uses the toilet in the
has consistently suffered from overcrowding. In
same room that she shares with other detainees.
recent years, the center’s population has risen from
She is never allowed outside.
300 to 550, and at times, has exceeded 600.75 While
Detention under these conditions has caused Ms. many of those confined at Krome have criminal
R- great anguish. She worries constantly about convictions, others are asylum-seekers who arrived at
her twin boys in Africa. She believes that her the Miami International Airport.
stress and inactivity contribute to her high blood
As a result of overcrowding, temporary cots have
pressure. Despite poor English language skills,
become a staple at Krome, and buildings that were
Ms. R- managed to communicate her frustrations
and fears to the priest who celebrated mass at supposed to be closed or used for other purposes are
the facility. With his help, she contacted the now being used to house detainees. At this writing,
Jesuit Refugee Service (JRS). 16 cots have been added to six of the pods for
detainees with criminal convictions, even though
Ms. R- became an avid participant in programs those pods were already filled to their maximum
that JRS provided at the detention center. She capacity of 50 persons. Detainees have complained
attended an English class each week and was able that mattresses for these cots have been in short
to forget temporarily that she was in prison. The supply. Moreover, officials have converted part of the
new words she learned helped her communicate Public Health Service building into housing for
with guards and other detainees. She also detainees and male asylum-seekers have been housed
regularly attended Bible study sessions and small in a building that was supposed to be closed.
group pastoral visits, which “helped [her] learn
about God.” “You know, sometimes all you The overcrowding has not only made daily life more
want to do is cry, cry in detention,” she said. difficult for detainees, it has also limited attorney
“But then you see it doesn’t help anything. So access. Because of the high numbers at Krome, daily
instead I pray ... I leave it to God.” counts taken at the facility are frequently inaccurate,
resulting in recounts which effectively close the facility
In late 1999, the INS canceled all of these for hours. Since detainees must remain in one location
programs because the pastoral volunteers
during this time, attorneys who would like to visit their
discussed detention during Bible study and
clients must either wait or return another day.
English class. The INS said that this violated its
(unwritten) rules, raising the question, if not
detention, what would pastoral workers discuss
with detainees? Ms. R- now finds that she has
nothing to look forward to and has begun to
“think too much” again. After more than four
months, Bible study classes finally began again.
Now, however, she says that the classes are
monitored by the INS and “are not conducted
with joy like before.” English classes and pastoral
visits are still prohibited.
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 15
to a detention center. She remained detained
there for seven months before being transferred
to a county jail.
At the jail, Ms. T- was strip-searched and placed
in minimum security. Shortly after her arrival, she
was moved to the maximum security section
without explanation, even though she was a non-
criminal detainee. When she saw the conditions
of the other prisoners in maximum security, Ms.
T- became despondent and started crying. She
attempted to explain that she sought asylum and
was not a criminal.
Photo Courtesy: INS Her protests seemed to enrage the guards, who
yelled at her and forcibly took her to her cell.
Ms. T continued to cry. As a result, the guards
i. Abuse by Prison Officials placed her in what they called the Bad Attitude
and Misuse of Segregation Unit or “BAU.” Prisoners viewed the BAU as a
form of punishment for rule violations.
The conditions in INS “processing centers” and
contract prisons has led to hunger strikes, suicide Ms. T- was seated on the floor in the cell when a
attempts, and even riots.76 Abuse by guards and female guard and a nurse entered and told her to
other detention officials represents a recurring theme take off her uniform. She complied, but refused
in reports on the INS system.77 For example, ten to remove her underwear and her bra. The two
guards at the Union County jail in New Jersey were women held Ms. T- and forcibly took off her bra
and underwear. Ms. T- then went to sit on the
convicted for various offenses related to assaults
bed to cover herself with a blanket, but the bed
against INS detainees in their custody.78 Among
did not have sheets or a blanket; it was a
other abuses, the guards beat and kicked immigrants, mattress covered in plastic. She hid under the
stuffed their heads into toilets, yanked out their pubic bed because she was embarrassed to be naked.
hair, and squeezed their tongues with pliers.79 In a
bitter irony, the victims of these assaults had been Two large male guards arrived and pulled her
transferred to Union County from the INS contract from under the bed. Five guards then
facility in Elizabeth, New Jersey where, according to surrounded her and threw her into the middle of
an INS report, they had been “subjected to the cell. The guards asked whether she was
harassment, verbal abuse, and other degrading hearing voices or was trying to kill herself. She
actions” by guards.80 At that facility, for example, responded that if she had wanted to kill herself
guards refused to issue sanitary napkins to women she would have remained in her own country.
and provided them with oversized male underwear She told them that she was upset at the way they
were treating her. A guard then threw her on the
marked with hand-written question marks on the
bed in the cell. Because it had no sheets or
blankets, it was very cold. The two male guards
held her down. One held her arms and head
Abuse of Asylum-Seekers
against the bed while the other held down her
“Ms. T-” arrived in the United States three years legs. Meanwhile, another guard injected her with
ago, as a 19-year-old asylum-seeker. In her a drug. The guards then released her. She again
native Uganda, Ms. T- had opposed the hid under the bed to hide her nudity. The drug
government and supported the opposition rebels. had no effect on her. About 30 minutes later, the
As a result, the government threatened to kill her. guards returned, pulled her out from under the
After the military kidnapped her sister thinking bed and took her to another cell.
that it was Ms. T-, Ms. T- fled Uganda in the only
way open to her, with false documents. When they arrived at the new cell, the guards
threw Ms. T- on a bed, and shackled both her
Ms. T- arrived at an international airport a few legs and her arms to the bed so that she was
days later. After she asked for asylum, the INS facing up. She cried out in fear. A guard again
handcuffed her, shackled her ankles, and took her injected her with a drug. She continued to cry. A
guard returned and put a towel on her stomach,
16 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
but this did not cover her entire body so Ms. T- necessary to prevent Mr. X- from committing
attempted to move the towel with her shackled suicide. Mr. X-’s attorney estimates that he has
hand to cover herself, bruising her hand. spent more than seven months in solitary
confinement since his arrival in the United States.
Ms. T- was shackled to the bed for two days.
She was unconscious during part of the time, A judge denied Mr. X’-s application for political
perhaps due to the injections. Finally, she was asylum and the BIA upheld this denial. The IJ
taken to a doctor. He asked her some questions also denied his claim under the Convention
and told her that she could return to the Against Torture, citing minor inconsistencies in his
minimum security section of the prison. The testimony. An appeal of the IJ’s decision is
guards, however, refused to return her. After 55 currently pending before the BIA.
days in maximum security, the INS transferred
Ms. T- back to the INS detention center. She was During Mr. X-’s prolonged segregation at the INS
released from detention about a year and a half detention center, his attorney made several
after arriving in the United States. The IJ granted requests that he be afforded a psychological eval-
her asylum request four months later. Ms. T- is uation and appropriate mental health care. After
now attending school and trying to forget her his requests were ignored, the attorney notified
ordeal. detention officials that a lawsuit would be filed.
Shortly thereafter, the INS transferred Mr. X- to a
At times, detention officials misuse segregation,
state prison where he was also placed in solitary
turning it from a disciplinary tool into an instrument of confinement. Recently, he was sent to a different
cruelty. Segregation seems a particularly cruel state correctional center, where he is being held
response to persons suffering from mental or physical in a mental ward.
Misuse of Segregation for Mentally Ill j. Improperly Informing
Mr. X-, a Sri Lankan national, arrived in the Officials of Asylum-Seekers
United States in April 1998. He had endured
torture by his country’s government, as evidenced in Detention
by his broken fingers. Mr. X- hoped to pass
through the United States in transit to Canada, INS regulations require the agency to maintain the
where he planned to join his sister and brother- confidentiality of asylum-seekers.83 Asylum- seekers
in-law. However, due to his invalid travel often fear that if officials from their own governments
documents, the INS placed him in expedited learn that they have come forward with their stories,
removal. Although he passed a credible fear their family members abroad will be endangered. Or,
screening, Mr. X- remained in detention. At the if they do not ultimately receive asylum, they will be
detention center, Mr. X- suffered serious rectal at even greater risk of persecution themselves.
bleeding, hemorrhaging, and depression. His Unfortunately, these fears are often justified.
medical problems were so severe that he was
often unable to sleep at night. When he slept he In order to protect asylum-seekers and their families,
wore diapers, which were soaked with blood by the United States must take seriously its responsibility
morning. Several of his fellow detainees wrote a to maintain confidentiality. Some INS districts,
letter to the detention center officials stating their however, ignore this duty. For example, in New York,
concerns about his health. On one occasion, asylum-seekers from certain countries have received
unable to sleep and in agonizing pain, Mr. X- left letters informing them that their consulates were
his bunk and went to the common eating area. notified that they are in INS detention. In themselves,
At 3:00 a.m., a guard found Mr. X- sitting in the the letters comply with a regulation that requires the
room and listening to his walkman. For failing to United States to notify certain governments of the
obey the center’s rules, the guard placed Mr. X-
detention of their nationals.84 However, the INS has
in solitary confinement.
gone a step further and informed consulates that their
While detained, Mr. X- exhibited mental health nationals are detained at facilities which hold only
and behavioral problems. He attempted suicide asylum-seekers. This effectively violates the prohi-
several times. Rather than providing Mr. X- with bition against informing foreign governments of their
appropriate treatment, officials placed him in nationals’ asylum claims.
solitary confinement, arguing that this was
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 17
Confronted by the Government That
Killed His Parents
“Mr. B-,” a 27-year-old, fled his native country in
Africa after the authorities murdered his mother
and father outside their home. His father, a
political activist, was shot by soldiers while Mr. B-
watched from a window. After his parents’
deaths, Mr. B- learned that he himself was also
wanted by the authorities. A friend of his
father’s, who was hiding Mr. B-, insisted that he
flee the country.
In October 1999, Mr. B- fled to the United States
with someone else’s passport. As is typical in Photo Courtesy: INS
such cases, he could not secure his own travel
documents from the authorities in his country.
Upon his arrival, Mr. B- was detained at an INS
2. Protecting the Most
detention center. By March, he had obtained free Vulnerable: Detention of
legal assistance and had begun to feel secure in
the United States. One day, however, he was Women and Children
called to the visitation area, where he expected to
see his lawyer. Instead, he was confronted by The detention of bona fide asylum-seekers raises
two representatives from his country’s consulate significant concerns about the viability of the United
who said they wished to interview him. Mr. B- States’ protection regime. Particularly troubling is the
was shocked, because he had not contacted his long-term detention of those who raise cutting-edge
government and did not wish to speak to asylum claims. Increasing numbers of women and
members of the regime that killed his parents. children, for example, are filing for asylum based on
He believes that the INS notified his government claims that stretch the traditional confines of asylum
of his presence and brought them in to see him.85 law. These cases merit particular attention; the
Since the facility where Mr. B- was detained holds UNHCR estimates that women and children comprise
almost exclusively asylum-seekers, it would have up to 80 percent of most refugee populations.86
been obvious to the consular representatives that However, adjudicators often dismiss novel claims,
Mr. B- had requested asylum.
failing to recognize their merits under modern refugee
principles. As a result, many asylum-seekers who
Mr. B- is now worried that if he loses his asylum
claim and is deported, the government will count make gender- or age-based claims must endure long
his asylum request as another strike against him. periods of detention while their cases run their course.
a. Women in Detention
One of the most publicized cases raising gender issues
in recent years involved Fauziya Kassindja, a citizen of
Togo.87 After the death of her father, Ms. Kassindja
was taken in by an aunt who insisted not only that
she marry a much older man against her wishes, but
also that she undergo female genital mutilation
(FGM), a procedure that disfigures the female
genitalia. Her asylum claim was initially presented
while Ms. Kassindja was in INS detention. An IJ
denied the claim, maintaining that FGM did not
constitute persecution against a specific group, but
conformed with a general cultural norm. Eventually,
Ms. Kassindja obtained asylum through a landmark
ruling by the BIA that FGM constituted persecution
for asylum purposes.88 The case paved the way for
many similar claims.
18 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
Ms. Kassindja’s case arose prior to expedited removal. Severely Battered Asylum-Seeker
Had expedited removal been in place, her fate would Detained
certainly have been different. There would have been no
mechanism to correct the decision reached by the judge. Mrs. K-, a 50-year-old native of the DRC, was
married to a military officer who served under the
The system was tested some time later with the case regime of former President Mobutu. Together,
of Adelaide Abankwah, a young woman from Ghana they had four children, ages 24, 21, 12 and 7.
who, unlike Ms. Kassindja, was placed in expedited During the course of their marriage, Mr. K-
removal upon her arrival. After passing her credible repeatedly raped and severely beat Mrs. K-. Mrs.
fear interview, Ms. Abankwah was confined in the K- also contracted sexually transmitted diseases
Wackenhut detention facility, where she remained for from her husband. According to the U.S.
a year and a half. She was 29 and a member of the Department of State, domestic violence is wide-
Nkumissa tribe. This tribe punishes women who spread and rarely reported in the DRC.
engage in premarital sexual relationships. When faced Moreover, the DRC has no laws that address
with an arranged marriage which would have revealed spousal abuse, and no crisis centers or hotlines for
victims. Due to Mr. K-’s high ranking military
that she had engaged in premarital sex, Ms.
status and the refusal of the government to
Abankwah began to fear that FGM would be
intervene in what it considers a “private” matter,
performed on her and she fled to the United States. Mrs. K- had no protection from her batterer.
An IJ denied her asylum claim, and the BIA affirmed.
A federal court eventually overturned this denial, In early 1998, Mrs. K- nearly escaped death after
holding that the judge and BIA had imposed too high a gruesome beating that left her unconscious for
a burden of proof.89 four days. She was threatened with a gun,
punched, kicked, raped, and dragged across the
The decision represented a triumph for asylum-
floor, before her son was able to transport her to
seekers. At the same time, it highlighted the her brother’s home. After Mrs. K- recovered
difficulties created by detention in such cases. Ms. enough to travel, she fled to the United States
Abankwah’s case attracted considerable attention using her sister’s passport. She could not secure
from the news media, lawyers and advocacy organi- her own passport because she feared that officials
zations, fortifying her decision to pursue her case. at the passport agency would alert her husband
Other women, however, almost certainly have failed that she was trying to flee.
to raise or have abandoned similar claims in the face
of open-ended detention. Upon her arrival in the United States in March
1998, Mrs. K- passed a credible fear interview
Immigrants who fear the consequences of a purely and was sent to an INS detention center. She
“personal” dispute have traditionally not been found filed an application for political asylum, arguing
eligible for asylum. Yet a growing class of asylum- that she had suffered persecution as a member of
seekers maintain that they fear abuse at the hands of the social group consisting of Congolese women
their husbands, and that their government will not who refused to live at the mercy of abusive
protect them.90 The UNHCR has unequivocally stated husbands. The IJ and subsequently the BIA
that countries are free to apply the refugee definition denied her application. Her case was later
so as to include women fleeing domestic violence in reopened and she applied for relief from removal
these circumstances.91 Canada, for example, issued under the Convention Against Torture. In August
2000, 29 months after her arrival in the United
guidelines recommending that women should be
States, Mrs. K- was granted protection under the
recognized as refugees if they suffered domestic
Convention Against Torture and was released
violence, provided that they could not secure from detention.
protection from their governments.92 The Canadian
Guidelines were mirrored in similar INS guidelines
adopted in the United States,93 and several IJs have
b. Children in Detention
granted asylum to women based on unchecked Children also deserve special treatment in our immigra-
domestic abuse in their homelands. In a 1999 tion system. As in the case of women seeking asylum,
decision, however, the BIA rejected the claim of a the United States has followed Canada in adopting
woman who had been beaten by her husband and model guidelines intended to establish an appropriate
repeatedly denied government protection.94 The methodology for deciding children’s claims.95 The U.S.
decision has already been used to deny at least one guidelines recognize that certain forms of human rights
asylum claim that raised similar issues. abuses can only be experienced by children.
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 19
The celebrated case of Elian Gonzalez, the six-year-old Twin Brothers Flee Street Gangs, Find
Cuban boy whose custody became a battleground for Refuge
international relations, drew significant attention to
the issue of children in INS custody. Every year, the Jose Luis Oliva and Jose Enrique Oliva are 16-
INS apprehends several thousand unaccompanied year-old twin brothers from Honduras.103 The
minors (under 18 years of age) attempting to enter to Border Patrol arrested them last summer after they
the United States.96 All of them are arrested, almost swam across the Rio Grande. The INS placed
all of them are detained for some period, and many them in a detention facility, where they remained
pending a decision on their cases. The children
are eventually deported. In FY 1998, the INS reported
maintain that if returned to Honduras, there
having detained roughly 5,300 children; it deported
would be no one to care for them, they would be
880 of them.97 In FY 1999, the INS detained 4,607 forced to live on the street, and their lives would
undocumented juveniles under the age of 18 and be at risk. Their mother abandoned the boys
returned 1,218 juveniles.98 These children travel by when they were 22 days old. They lived with
land, air and sea, and come from all corners of the various relatives who physically abused them.
globe. A large number originate in Mexico, South and
Central America, but children’s advocates report The asylum applications filed by these boys raised
assisting detained minors from as far away as Sri novel questions. During the pendency of their
Lanka, Albania, Pakistan, and China. cases, they remained in detention. The INS
argued that releasing the boys would leave them
The United States’ detention of unaccompanied homeless. Their lawyers argued that some form
minors has come under intense criticism. For of secure housing, distinct from detention, was
example, Human Rights Watch concluded that “unac- required in light of their age and vulnerability.
companied children awaiting determination of their The lawyers requested the appointment of a
status should not be detained,” and that “the U.S. special guardian to safeguard the children’s
Congress should not charge the same agency with the interests.
care of unaccompanied, undocumented children and
also the enforcement of immigration laws against Jose Luis’ and Jose Enrique’s cases had a happy
them.”99 ending. The IJ granted asylum to the boys on
February 7, 2000.
International organizations envision a system that
nurtures and cares for children, instead of one that
imprisons them. The UNHCR maintains that “children
seeking asylum, particularly if they are unaccom-
panied, are entitled to special care and protection.”100
This should include education, health care, and
appointment of a special guardian “with expertise in
the field of child caring.”101 In such a system, “unac-
companied minors should never be detained on
account of illegal entry or presence.”102
International treaties affirm the same themes. Article
20 of the 1990 United Nations’ Convention on the
Rights of the Child, which the United States has not
ratified, provides that unaccompanied children “shall Photo Courtesy: INS
be entitled to special protection and assistance
provided by the State” and that if not sent to foster
Detained While Only Eleven Years Old
care, they should be sent to “suitable institutions for
the care of the children.” Placement in detention Eber Sandoval is an 11-year-old from Honduras.
centers and jails, especially with adjudicated juvenile After crossing the Rio Grande last summer near
delinquents, is not envisioned and would certainly Brownsville, Texas, Eber was detained at a special
violate the spirit of the treaty. Despite these interna- facility for juveniles located in Los Fresnos, Texas.
tional standards, the United States routinely detains Shortly after his birth, both of his parents
children arriving in the country, many of whom fled abandoned him. Like Jose Enrique and Jose Luis,
intolerable situations in their home countries. Eber maintained that in Honduras he would have
been forced to participate in gang activities and
that security forces would have retaliated against
20 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
him. In addition, he had no one to look after him Ultimately, the gang members killed the judge to
there. While Eber was detained at a more appro- whom J- had reported the theft.
priate facility than Jose Enrique and Jose Luis, the
detention of children always raises concerns.104 Upon his apprehension by the Border Patrol in
Eber received political asylum in March 2000, and 1997, J- was taken into INS custody. He filed an
was released from custody shortly thereafter. asylum application in January 1998. An IJ denied
the application in late February 1998. The BIA
15-Year-Old Girl Detained in Juvenile denied his appeal in October 1998. During this
Jail for Seven Months Prior to Asylum time, J- remained in detention. The day after the
Grant BIA denied the case, his representative filed a
request for an interview under the Convention
In a case that gained national attention, a 15- Against Torture and requested a stay of depor-
year-old girl arrived in the United States from tation. Nevertheless, the INS deported J- to
China on April 9, 1999. She had been smuggled Honduras.
into the United States at the request of her
parents. As the third child in her family, the girl J-’s representative contacted INS headquarters
had been denied education, medical care, and and explained the situation. The INS agreed that
other basic rights in China under her nation’s his deportation had violated the Torture
family planning policy. Upon her arrival in the Convention and that he should be returned to
United States, she applied for political asylum. In the United States. An officer instructed J-’s repre-
May 1999, she was transferred to a juvenile jail in sentative to have J- proceed to the U.S. Embassy
Portland, Oregon, where she remained detained in Tegucigalpa.
(with criminal offenders) throughout the
pendency of her application. Although granted Since J- was in hiding, finding him in Honduras
political asylum in late October, she was not proved difficult. His representative had a phone
released until mid-December. INS officials number of one of his uncles, who lived in
blamed the delay on their inability to find and northern Honduras. After a week of trying to
approve a sponsor for the girl. They cited the reach him, the representative spoke with the
complex approval process for placement of uncle and explained the situation. The uncle had
children smuggled into the United States, not seen or heard from his nephew since his
explaining that smugglers often pose as sponsors. return. However, knowing that the boy’s life was
in danger, the uncle embarked on an eight-day
In this case, however, shortly after her arrival, the trip to southern Honduras, where J-’s family was
girl had identified an uncle who resided in New then living. By the time he had reached southern
York. Although he was willing to act as a Honduras, Hurricane Mitch had struck. The
sponsor, her placement with him faced multiple family was not able to get J- to the Embassy until
delays. After he visited the New York INS office late December 1999. Upon his arrival, confusion
in September to straighten out the situation, an among Embassy officials and difficulty securing
INS home study was ordered. However, this was appropriate travel documents further delayed J-’s
not conducted until early December 1999.105 travel to the United States. During this time, J-
was paralyzed with fear, and stayed in hiding.
Bureaucratic inefficiencies and other shortcomings in
the system can also conspire to send detained children He was finally able to return to the United States
back to life-threatening situations. in January 2000 and received asylum shortly
Deported to Honduras by Mistake, Boy
Finally Makes It Back Children venture alone to the United States for a
variety of reasons.106 Many come to join parents or
In late 1997, “J-,” a national of Honduras, was family members already here. Some arrive fleeing
apprehended while attempting to cross the persecution or war in their home countries. Some
southern border. At the age of 17, he had fled come because they have been neglected or
his native country due to persecution by a gang. abandoned by their parents. Some children are sent
J-’s troubles started when gang members stole a by their families to earn money to send back home.
cow belonging to his family. Although he knew
that the gang members might seek revenge, J- Their port of entry, age, immigration history, and the
reported the incident to a judge. In retaliation, availability of INS bed space all determine where a
the gang members attempted to kill him. During child will be placed. Some children are held at
one attack, a bullet barely missed him. privately-run, state-licensed shelter-care facilities.
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 21
Others, though, are not as fortunate. The INS has Fifteen-Year-Old Boy on Vacation,
reported that it has access to 500 beds in nonprofit Wrongly Suspected of Having False
shelters, group homes and foster care facilities.107 Yet, Documents, Spends More Than a Month
this does not suffice. in Detention
Shelter-care facilities are generally run by nonprofit
agencies under contract with the INS. For example, “N-,” a 15-year-old native of Pakistan, came to
the United States to spend his summer vacation
there are approximately 60 beds in Chicago at the
with relatives in California. Upon arrival at the
International Children’s Center, administered by the
Los Angeles International Airport, N- presented a
Heartland Alliance for Human Needs and Human valid passport and tourist visa to immigration
Rights. The population there consists mainly of officials. The officials asked him why he came to
Chinese children, ages 13-17, who arrived at interna- the United States and N- stated the purpose of
tional airports throughout the country. The children his visit. The officials did not believe him and
take regular field trips, receive legal rights presen- suspected that he intended to remain in the
tations at least once a week, and visits by legal United States permanently. They charged him
representatives from the Midwest Immigrant Rights’ with inadmissibility for possession of improper
Center at least twice a week. Similarly, all of the entry documents. He was transferred to INS
approximately 50 Central American minors held at the custody without an opportunity to speak to the
International Educational Services shelter in Harlingen, relatives awaiting his arrival.
Texas have weekly access to legal advice, and take
N- was detained at a state juvenile corrections
recreational field trips.
facility for more than one month. Twelve days
Detention rarely serves a child’s best interests, partic- passed before his first immigration hearing. No
ularly when family members or social service agencies interpreter was provided at the hearing, and
can care for him or her. The settlement agreement of another week passed before N- was afforded a
a class-action law suit mandates certain standards for second hearing. Not until two additional hearings
did the IJ terminate proceedings, finding that his
the detention of children. The settlement, reached
documents were valid and he only intended to
years ago in the case of Flores v. Reno,108 ended a
visit family temporarily.
challenge brought by several national organizations on
behalf of unaccompanied minors in the Western Throughout his detention, N- endured deplorable
Region of the INS. Under the Flores agreement, conditions. Officials detained him in a unit for
minors held in juvenile detention facilities or other juveniles with criminal convictions. He was
non-shelter environments must be “separated from confined in a small room. The staff spoke exclu-
delinquent offenders” and must be transferred to sively in English and no interpreters were
shelter-type facilities within three to five days, provided to explain the rules of the facility to
depending on the availability of space.109 There are him, increasing the boy’s confusion and anxiety.
many exceptions to this policy, however, that leave Some meals contained pork, which he does not
hundreds of children unprotected. For example, INS eat due to religious convictions. Dietary options
minors may be held indefinitely in corrections facilities were not provided to N-, and as a result he was
often hungry. Daily exercise was mandatory.
“in the event of an emergency influx.”110 In addition,
Undernourished and weak, N- was threatened
the INS has carte blanche to hold any minor who is
with pepper spray when he was physically unable
adjudicated or even suspected of being a delinquent to participate. Telephone calls were only allowed
or a flight risk at a “juvenile detention facility.” sporadically after 5:00 p.m. on weekdays and on
The Flores agreement requires that even minors with Saturdays. This policy inhibited N- from main-
criminal backgrounds be held in “separate accommo- taining contact with his relatives and informing
his counsel of his treatment and scheduled
dations” from those with adult criminal convictions.
However, in practice, commingling regularly takes
place. In Los Angeles, for example, INS minors are Many minors, although they have no criminal back-
routinely mixed with the general criminal population. grounds, are held at government or privately-run
Attempts to correct this situation with the Los Angeles correctional institutions. For example, the INS in Los
district have been unsuccessful. Angeles places arriving minors with no suspected
criminal involvement at Los Padrinos juvenile hall, a
correctional facility run by the Los Angeles County
Probation Department. Los Padrinos is a locked-
22 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
down, secure facility, where juvenile offenders are the Anaheim Asylum Office to interview the
held separately from the INS minors. Although mother and child for possible legal representation.
religious volunteers are present there, the children The attorney reported to the downtown head-
never leave the facility on field trips or other quarters of the INS, where she first met the
excursions. When moved into or out of the facility, terrified little girl. L- was silent, staying close by
officials handcuff them. Attorneys may conduct indi- her mother, clinging to her stuffed animal.
vidual visits, but not legal rights presentations. Pepper
Just a few hours after the interview, the attorney
spray is an official tool of discipline, and the children
received a desperate phone call from the mother.
report problems obtaining access to telephones. The mother had been separated from her child
The situation is completely different at Casa San Juan, and taken to the INS San Pedro detention facility.
a converted convent run by Catholic Charities two Even worse, she had not been informed of L-’s
hours away in San Diego. There, children can remain fate or whereabouts. Through CLINIC’s inter-
vention, the mother learned that her daughter
with their mothers and keep some of their toys. They
was being held at Los Padrinos, the juvenile
may venture outside freely after school hours.
corrections hall run by the Los Angeles County
Attorneys and religious volunteers have access to all Probation Department. At Los Padrinos, L-’s
rooms in the facility, including the bedrooms and the stuffed animal had been taken away from her
kitchen. and she was given vaccination shots without
Unfortunately, the INS does not have nearly enough understanding what they were. No one at the
facility spoke her language, and most of the other
shelters for families and unaccompanied minors. As a
girls were almost twice her age.
result, in a wholly unacceptable practice, it often
separates children from their parents. In Los Angeles, Mother, daughter and father were separated for
for example, the INS recently held two mothers at an more than six days until their credible fear
INS detention center, while their children were sent to interviews took place. During that time, they
a juvenile corrections facility. In one case, a Chinese could not see each other, and were only allowed
mother arrived with her 10- and 12-year-old boys in to speak twice on the telephone.
January 2000. Instead of placing the three at the San
Children should never be separated from their parents.
Diego shelter or a similar facility, the INS detained the
They should never be confined with criminals in
boys at Los Padrinos juvenile hall and the mother at
juvenile prisons, much less with adults serving their
the INS San Pedro detention facility. Officials did not
criminal sentences. Detention of children should be
tell the mother of the whereabouts of her sons, and
avoided whenever possible. If necessary to confine
denied her repeated pleas to contact them. In the
children at all, they should be kept in shelter-care
end, the woman became so distressed that she had a
facilities appropriate to their unique needs and vulner-
seizure and was hospitalized for several days. It was
abilities. It represents a national disgrace that, after
not until a month later that the mother and sons were
years of mistreating children in its custody, the INS still
reunited with the boys’ father in New York.111
separates children from their parents, still places
Torn From Her Mother’s Arms: Eight- children in facilities for adjudicated delinquents, and
Year-Old Czech Girl Forced into Juvenile still lacks adequate shelter space for all of those in its
Criminal Corrections Facility
Eight-year-old “L-” arrived at the Los Angeles
airport with both her parents in February 2000.
The family had fled the Czech Republic, where
their lives had been repeatedly threatened by the
After they arrived at the airport, they were kept
in an INS holding area for three days. INS
officials at the airport interviewed the family and
determined that they were entitled to a credible
fear interview. The INS sent the mother and
daughter to a local hotel, and placed the father in
INS detention. A CLINIC attorney was asked by
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 23
Not to be confused with indefinite detainees who can
be released under our laws, “mandatory” detainees
account for most of the growth in the INS system. The
1996 Immigration Act mandates the detention of
various categories of immigrants while their removal
hearings run their course. The largest group of
mandatory detainees consists of non-citizens who
have committed criminal offenses, but completed their
prison terms. While some should be kept detained
because they represent a danger to others, many
“mandatory” detainees committed relatively minor
crimes, often long ago, and enjoy strong ties to the
1. Indefinite Detainees
After a non-citizen receives a final order of removal,
the INS normally has 90 days to effect his or her
removal from the United States.116 If the INS cannot
remove the immigrant during this time, he or she can
be released from detention.117 However, this decision
lies with the local INS district directors who can keep
in detention persons that they determine represent a
danger or a risk of flight.118 For many immigrants
with final orders of removal, the 90 days come and go
and the INS still has not deported or released them.
Photo Courtesy: INS The INS refers to people in this situation as “lifers” or
“unremovables.” Many spend years in INS custody.
B. INDEFINITE, Unlike U.S. citizens who cannot be punished twice for
the same offense, non-citizens sometimes receive an
MANDATORY AND even harsher punishment by the INS.
SECRET EVIDENCE One Conviction, Two Sentences
DETAINEES In 1993, “Mr. R-” arrived in the United States
after fleeing Cuba. He was granted parole in the
According to INS officials, the United States detains United States. Under current immigration law,
roughly 5,000 immigrants on any given night who Cuban nationals paroled into the country are
cannot be deported because their countries of origin allowed to apply for permanent residence after
will not take them back.112 Most indefinite detainees one year.119 Although Mr. R- never completed
come from countries without diplomatic ties to the this process, he resettled in the United States and
United States, with the largest single population began work as a mechanic, sending money on a
coming from Cuba.113 As of August 1999, there were regular basis to his three children, ages 9, 12, and
1,750 Cubans in detention who arrived in the Mariel 17, in Cuba.
boatlift,114 and almost 600 non-Mariel Cubans.115
Another large group of indefinite detainees came to Mr. R- was arrested at a party with friends. The
the United States as refugees from Vietnam, Laos and host of the party had cocaine at his apartment.
Cambodia, countries that now refuse to accept their Unfamiliar with the criminal justice system here,
return. Others are stateless, or come from countries Mr. R- followed the instructions of his attorney
that have no functional or central government. Still and pled no contest to a cocaine trafficking
others have been granted relief under the Convention charge to avoid spending time in jail. In
Against Torture, which prohibits the return of those September 1996, he was sentenced to three years
who would be at risk of torture at home, but does not of supervised probation.
necessarily lead to their release. A minority come
from a growing list of countries that customarily In November 1996, when Mr. R- reported for
accept the return of their nationals, but refuse to do probation, the INS took him into custody. As a
so in individual cases. result of his conviction, the IJ ordered him
24 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
“excluded” (deported) a month later. However, for him as soon as he can be released. He wants
because the United States does not have to get back to work and continue his life.
diplomatic relations with Cuba, Mr. R- could not
be deported. Instead he remained in detention
for more than three years. During the summer of
1999, he received his first custody review.
Despite assurances from his permanent resident
brother that he would help Mr. R- find
employment, Mr. R- was denied release. Not
until March 2000 did the INS finally release him
under an order of supervision. Although Mr. R-
served no jail time for his criminal offense, he
spent more than three years in detention because
the INS could not deport him.
In recent years, the issue of indefinite detention has
become more widely publicized as strict immigration
laws force more people into INS custody. On August
6, 1999, the INS took the important step of estab- Photo Courtesy: INS
lishing a national policy regarding the provision of
regular custody reviews for all indefinite detainees.120 In July 2000, the INS published a proposed rule to
However, characteristically, certain district directors did codify an amended version of its policy regarding
not implement the instructions from INS headquarters. review of indefinite detention cases.122 The proposed
Advocates reported that in many sites INS detainees rule creates for all indefinitely detained immigrants a
did not receive notice of their custody reviews, review process that tracks the one that has been in
precluding their ability to marshall evidence in support place for Mariel Cubans since 1987. The apparent
of their release.121 In other districts, the attorneys of objective of the proposed rule is laudable — that is, to
record did not receive notice. In several sites, the INS transfer authority for custody reviews from the local
did not provide notice of custody decisions within 30 district directors to a newly established “Headquarters
days, as required by the instruction. In some places, Post-Order Detention Unit” (“HQPDU”) if the
notices denying release included cursory or inadequate detainee has not been removed six months after
explanations. Worst of all, in some cases, “indefinite receiving a final order of removal. However, the rule
detainees” did not receive custody reviews at all. decreases the frequency of reviews from every six
months (as stipulated in the August 6, 1999 policy
INS Fails to Comply with Its Own instruction) to once a year. In addition, the rule elim-
Instructions inates review of custody decisions by the BIA,
completely insulating the process from non-INS review.
In 1995, “Mr. U-,” a 22-year-old Cuban, came to
the United States to start a new life. After The proposed rule also adopts the current policy of
resettling in the United States, he obtained work sending written notices to the detainees at least 30
for a telephone company. In 1996 he was days in advance of each custody review. Although
convicted of trafficking cocaine. He was the 30-day time-line is intended to provide detainees
sentenced to three years in prison but was with time to gather documentation in support of their
released early, after about two-and-a-half years, release requests, in practice 30 days is not enough
for good behavior. He was transferred to INS time to obtain legal counsel or letters from often
detention. While in detention, the INS reviewed uncooperative prisons regarding their institutional
Mr. U-’s file to determine whether he should be
records. After the INS custody review takes place, the
released. Mr. U- received a denial letter (without
detainee may still remain in detention for months
any rationale) from the INS in mid-July 1999,
which informed him that he would have a without receiving a response.
custody review interview in six months. Under
the new INS policy, Mr. U- should receive a
While He Waits, His Family Suffers
written notice 30 days before his interview. To
“Mr. D-” originally came to California as a
date, though, more than six months have passed
refugee when he was four years old, fleeing the
and he has still not received a notice of an
communist government of Yugoslavia. His family
interview. Mr. U- has a construction job waiting
in the United States includes two children, his
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 25
father, and 11 siblings who are U.S. citizens. All on the duration of detention for those who cannot be
of Mr. D-’s major life experiences (his education, deported.
employment history and family life) have taken
place in the United States. Unfortunately, in the Making matters worse, the INS has failed to pursue
early 1990s, when his mother became terminally reintegration programs that would address some of
ill, Mr. D- turned to drugs. Between 1994 and the concerns related to the release of indefinitely
1996, he was convicted four times for drug detained immigrants. Such programs could signifi-
possession. In 1996, Mr. D- also pled guilty to cantly mitigate any risk of danger to the community
petty theft. As a result, the INS placed Mr. D- in or of flight. They also cost far less than detention.
deportation proceedings. Indeed, a refugee resettlement agency in New Orleans
has begun to provide this service without any
Mr. D- completed his criminal sentence in 1998, government funding.
but the INS immediately took him into custody.
Since Mr. B- was classified as an “aggravated
felon,” he was required to be detained until his
deportation hearing. At that hearing, in July
1999, Mr. D- made a claim under the Convention
Against Torture, arguing that as a virtually assim-
ilated American he would be subject to torture in
the former Yugoslavia. At the time, anti-
American feelings raged there due to the conflict
in Kosovo. An IJ granted the application.
Unfortunately for Mr. D-, while persons convicted
of crimes who receive relief under the Convention
Against Torture cannot be deported, neither are
they necessarily eligible to be released from INS
Mr. D- applied for release, but the INS rejected Photo Courtesy: INS
his request. This denial particularly hurt Mr. D-’s
family, since he had been the principal source of An Alternative to Indefinite Detention
financial support for his two children. In addition, and to the Detention of Asylum-Seekers
his father suffered a stroke and paralysis on the
right side of his body during Mr. D-’s detention.
In September 1998, Human Rights Watch
Mr. D-’s absence during this critical illness was
published a stinging report on the mistreatment
keenly felt. Eventually, in February 2000, seven
of immigrants placed by the INS in local jails.126
months after he was granted deferral of removal,
The report highlighted the particular problems
Mr. D- was finally released.
faced by immigrants in Louisiana parish jails. In
As its stands, an indefinite detainee seeking to be response to the report, in October 1998,
released must prove by clear and convincing evidence community based organizations in Louisiana
that he or she is not a threat to society.123 In practice, established a working group to advocate for the
this can be an impossible burden to meet, since INS just treatment of INS detainees. Participants have
included the President of the Louisiana Hispanic
officials often treat past criminality (a condition the
Chamber of Commerce, the State Coordinator for
detainee cannot change) as non-rebuttable evidence
the American Immigration Lawyers Association,
that he or she will be a danger in the future. In the State Refugee Coordinator, the Executive
California, a federal district court appropriately Director of the Hispanic Apostolate, represen-
reversed this burden, holding that the INS must tatives from Loyola University Law School and
demonstrate by clear and convincing evidence that a the Twomey Center for Peace and Justice,
detainee poses a threat to the community or a flight Amnesty International, Mary Queen of Vietnam
risk in order to continue detaining the individual.124 In Church, and Catholic Charities of New Orleans.
fact, numerous courts have found indefinite detention,
particularly for long-term permanent residents, to be The group has met, on a quarterly basis, with the
unconstitutional on due process grounds.125 However, local INS district director and local prison officials
it should not take a law suit to release an indefinitely to discuss concerns regarding INS detainees at the
detained immigrant. There should be a fixed ceiling New Orleans Parish Prison. As a result of this
dialogue, in August 1999, the INS agreed to
26 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
release certain indefinite detainees to Catholic documents for his deportation to Nigeria, he
Charities of New Orleans. spent seven years in six different INS detention
To qualify for release, an indefinite detainee must
have a sponsor. If no family member can be Finally, in September 1999, the INS released Mr.
identified, the INS determines whether it would R- to Catholic Charities. He spent his first two
be appropriate to release the detainee to a weeks in a homeless shelter until Catholic
halfway house. If space is not available, the INS Charities found him an affordable hotel. Catholic
contacts Catholic Charities of New Orleans which Charities assisted Mr. R- with his housing
schedules an appointment to interview and expenses until October 1999, when he secured a
screen the detainee. The agency reviews the full time job as a steward at a local hotel. Three
detainee’s criminal background, and explains its and a half months after his release, Mr. R- moved
services and expectations. Once a decision has into his own apartment. His family has relocated
been made to accept a detainee, the INS and from Texas to rejoin him, and his wife is currently
Catholic Charities coordinate a release date. pregnant with their second child. Mr. R- recently
enrolled in a program to study management at
Catholic Charities arranges for housing prior to the hotel.
the detainee’s release. It then picks up the
immigrant and gives him an orientation to the Since May 1999, the INS has also released 18
program and to the community. Due to a lack of asylum-seekers to the Catholic Charities program.
funding for the program, Catholic Charities Former Catholic Charities clients have acted as
initially housed participants in shelters for the sponsors for some of these persons, providing
homeless until they could afford their own them with housing and even helping them to find
apartments. Subsequently, Catholic Charities employment. Two of the 18 asylum-seekers were
was able to rent rooms from the local YMCA for granted asylum prior to their release and referred
program participants. Catholic Charities’ staff to Catholic Charities for resettlement assistance.
assists the participants in finding employment and
accessing social services. Programs for released lifers, like the one run by
Catholic Charities of New Orleans, should be
Since August 1999, the INS has released 21 expanded nationally and federally funded.
indefinite detainees to this program. Of these, Unfortunately, the one federally-funded program that
only one has been rearrested. This occurred existed for released indefinite detainees has been
because he attacked his roommate. Catholic defunded. This program enjoyed a multi-year track
Charities reported the attack to the INS, who record of success with one of the INS’s most histor-
then arrested the detainee. Of the 21 indefinite ically difficult populations, Mariel Cubans. Not
detainees who have been released, all but three surprisingly, the program cost significantly less to
are employed. The unemployed include two operate than the continued detention of these immi-
disabled men and one 72-year-old man. The grants.
program’s coordinator characterizes the former
indefinite detainees as independent and Successful Program to Reintegrate
resourceful. Their prior life and work experiences
Mariel Cubans Defunded
in the United States make their transition into
society a smooth one. In general, Catholic From 1987 to 1999, Migration and Refugee
Charities’ staff have found the released “lifers” to Services (MRS) of the United States Catholic
be among their easiest clients. Conference (USCC) administered a successful
program to reintegrate and resettle “Mariel”
The program recently helped Mr. R-, a Nigerian Cubans who had been released from
national, to re-establish himself after seven years confinement. Prior to admitting detainees into
in INS detention. Mr. R- came to the United the program, MRS verified housing arrangements
States in 1986. Although married to a U.S. for them and, as necessary, determined the suit-
citizen and the father of a nine-year-old U.S. ability of these arrangements through home
citizen child, Mr. R- never became a permanent studies. The program carefully reviewed all the
resident. In 1989, he was convicted of information available about potential participants,
possession and delivery of a controlled substance. including psychiatric and psychosocial evalu-
After serving seven months of a seven year ations, and criminal justice history. It did not
sentence, he was transferred to INS custody. accept persons with excessively violent or sex-
Because the INS could not secure travel related criminal histories.
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 27
Participants received a range of intensive services gation and there may be other factors particular to the
that included: individualized, goal-driven individual such as the likelihood of absconding and
planning; orientation and reception into the lack of co-operation, which may justify detention for a
community; orientation of the sponsor (normally period. Without such factors detention may be
family members); follow-up with employers; considered arbitrary, even if entry was illegal….”131
weekly monitoring meetings; substance abuse Such statements by the Committee should be taken as
and other counseling; and assistance with voca-
evidence that the United States may be violating both
tional school enrollment. The program could and
Article 9 and its customary law obligations.132
did recommend parole revocation for clients who
violated the conditions of their parole, failed to
meet the program’s requirements, engaged in
illegal activity, or otherwise posed a threat to the
community. This feature significantly reduced the
potential risk of recidivism by participants.
In its final years, the program served an average
of 50 to 60 Cubans a year, with a success rate of
roughly 75 percent. Not surprisingly, the
program cost significantly less than detention. Its
success argued for expansion to other popu-
lations. Yet, in July 1999, the program was
suspended on the grounds that the INS could
meet the needs of released detainees through
contracts with half-way houses. In fact, INS
“indefinite detainees” approved for release often
remain detained for months or even years while
they wait for openings in half-way houses.127
Nor do half-way houses offer programs tailored
to the unique needs of these populations.
Photo Courtesy: INS
Beyond the hardship it causes, indefinite detention
may also violate the international obligations of the
United States. In 1992, for example, the United
2. Mandatory Detention
States became a party to the United Nations’ In theory, mandatory detention serves as a tool to
International Covenant on Civil and Political Rights prevent immigrants from absconding or endangering
(ICCPR), a document that many legal scholars assert society. In practice, it has stripped the INS and IJs of
has risen in its entirety to the level of “customary” the discretion to consider the particular circumstances
international law.128 As such, it may have the force of the detainee and his or her family. Under the 1996
of being binding even on countries that have not Immigration Act, for example, IJs cannot release a
ratified it. Article 9 of the ICCPR provides that “[n]o detainee in order to allow him or her to support a U.S.
one shall be subject to arbitrary arrest or detention.” citizen spouse or child, even if the detainee has been
The current practice of detaining “lifers” indefinitely, rehabilitated. The law incorrectly assumes that all
without binding regulations or laws regarding people with criminal convictions are a danger to
standards for release, could be considered arbitrary society and, as a result, forces the INS to detain many
under international standards. who pose no threat. In effect, the law formalizes
what has long been the practice of many INS district
The United Nations’ Human Rights Committee, which
directors to deny release based on the detainee’s past
exists to monitor compliance with the ICCPR, has
criminality, whatever the factors favoring release.133
explicitly stated that immigration control is covered by
Article 9.129 Under U.S. law, this interpretation may The law now requires the INS to arrest and detain
be viewed as authoritative, perhaps even binding.130 almost all non-citizens with criminal convictions,
The Committee has also recently ruled that the regardless of when the conviction occurred. It also
detention of a Cambodian in Australia for more than does not take into account how long ago the
four years was “arbitrary,” stating “detention should immigrant finished his or her jail sentence. After a
not continue beyond the period for which the State non-citizen pays his or her debt to society, the INS
can provide appropriate justification. For example, the must arrest and detain them, often for periods that
fact of illegal entry may indicate a need for investi- exceed their prison sentence.
28 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
Immigrants convicted and released from prison before During the first two months of his detention, Mr.
October 9, 1998 are eligible to request release from B-’s daughter drove his wife two hours to visit
INS detention.134 All non-citizens released from jail or him and to attend his court hearings. In order to
prison on or after October 9, 1998, however, are inel- make these weekly trips, Mr. B-’s daughter had to
igible for bond. They must be detained throughout miss several days of work. As a result, the
their immigration proceedings, which can drag on for daughter, who is married and has two children,
lost her job in October 1998. She remained
months and even years.
unemployed for four months. During this time,
Mandatory detention tears families apart. Permanent the family’s financial responsibilities fell solely on
residents who have lived in the United States for years her husband who could not find full-time work.
languish in detention, apart from their families, while
their cases pass through the immigration court system. While detained, Mr. B- missed the birthdays of
Exacerbating matters, the INS can detain foreign five of his six U.S. citizen grandchildren, as well as
Thanksgiving and Christmas with his family. In
nationals in any location it chooses. Accordingly, if it
addition, Mr. B- suffered severe pain from
arrests a non-citizen in Florida, it can transfer that
arthritis. He had previously undergone two oper-
person to Louisiana, regardless of the fact that his or ations: one to insert a piece of metal to connect
her family is in Florida. As a result, the immigrant will his hip to his leg; the other to treat his severe
be effectively denied visitation by his or her family, carpal tunnel syndrome. Although Mr. B- posed
who cannot afford to make the trip from Florida to no threat to anyone, had not been convicted of a
Louisiana. Separation from loved ones can lead to violent crime, and had completed his probation,
depression, anxiety, and loneliness for the detainee, as the INS did not release him until early 1999, and
well as for his or her family. It can also lead to the only then as the result of his medical condition.
family’s impoverishment. In April 1999, the INS withdrew its appeal and
Mr. B-’s case was closed.
Nonviolent Detainee Separated From Mandatory detention forces the INS to arrest and
Family detain petty offenders who represent neither a threat
to their communities or flight risks.
“Mr. B-,” a 59-year-old from Mexico, has lived in
the United States as a permanent resident for
more than 33 years. He has a permanent
Mandatory Detention Fills INS Detention
resident wife, an adopted U.S. citizen son, two System with Nonviolent People
U.S. citizen daughters, and six U.S. citizen grand-
“Mr. F-” is a 29-year-old from Sudan. In 1993,
children. In 1994, Mr. B- was convicted of failing
he came to the United States as a refugee. His
to prevent a felony, in this case the distribution of
father held a prominent position in a political
less than 50 kilograms of marijuana. The judge
group that opposed the government in Sudan;
sentenced him to three years of probation, but
Mr. F- was in danger of persecution because of
did not consider the crime serious enough to
his father’s activities. After resettling in
sentence him to prison time.
Tennessee, Mr. F- worked steadily as a laborer in
warehouses. He filed tax returns each year.
In 1998, while Mr. B- was returning to the United
Almost three years after his arrival, Mr. F- was
States from a visit abroad, the INS discovered his
convicted of simple possession of crack cocaine
1994 conviction. He was allowed to enter the
and sentenced to probation. In early 1998, the
country as a parolee, but after a check of his
INS placed him in removal proceedings for having
records, the INS terminated Mr. B-’s parole and
violated a controlled substance law. Although
instituted removal proceedings against him. The
Mr. F- was not a danger, the INS detained him in
agency charged Mr. B- with conspiring with
rural Louisiana throughout the proceedings. In
others to traffic in a controlled substance and
September 1999, the BIA granted Mr. F- with-
attempted to remove him from the United States.
holding of removal, but the INS did not release
Ultimately, the IJ terminated proceedings against
him until December 1999. In total, he spent 21
him, finding that his prior conviction did not
months in custody.
make him an illicit drug trafficker under the law.
However, the INS appealed the decision. As a
result of mandatory detention, Mr. B remained
detained throughout the pendency of his case,
five months in total.
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 29
No Jail Time, but More Than a Year in so counter-intuitive and expansive a reading of this
INS Detention law apparently surprised federal jurists, who consis-
tently rejected the INS’s position.136 In response to
“Mr. G-”, a 26-year-old Tanzanian, fled his more than a dozen adverse decisions by federal
homeland after finding his father, a prominent courts, the INS reversed course in July 1999, reading
member of an opposition political movement, “mandatory detention” to apply only to those
brutally murdered by the government. After his released from criminal custody on or after October 9,
father’s death, his mother went into hiding; Mr. 1998.137 Up to that point, it had wasted its scarce
G- has not heard from her since. A relative
detention resources on hundreds of immigrants it did
helped Mr. G- escape the country on a student
not need to detain.
visa and he arrived in the United States in January
1998. Unfortunately, after he resettled in In addition, the INS has failed to pursue alternative
Maryland, his relatives in Tanzania encountered forms of detention that have proven to be effective in
financial difficulties and could no longer afford to the criminal justice system. “Mandatory detention,”
pay his tuition. Desperate for tuition money, he for example, need not preclude a rigorous system of
accepted the offer of two men to open a bank
home detention through electronic monitoring. Not
account and deposit phony checks for them. He
only would expanded use of such a system be cost-
knew his actions were wrong, but believed they
would earn him enough money to cover his effective, it would be a humane alternative for
college tuition and comply with his student visa. non-citizens who enjoy strong family ties in the United
Instead, he was arrested. Mr. G- was convicted States, while accomplishing the same goals as “hard”
of attempted theft of less than $300 and received detention.
a one year suspended sentence and 11 months of
Although not a direct analogy to “civil” confinement,
probation. After his conviction in December
the federal pre-trial release program has enjoyed
1998, the INS arrested Mr. G- and placed him in
detention. He applied for withholding of removal significant success in assuring court appearances and
and relief from removal under the Convention protecting the community. These are the same goals
Against Torture. His case is currently on appeal. served by immigration detention. In FY 1998, only
To date, he has been in INS detention for more 4.5 percent of criminal defendants, who had been
than one year. conditionally released under this program, failed to
appear for their trials.138 Only one percent
Mandatory detention straight-jackets the INS,
committed a violation while released.139 The
precluding it from making common-sense decisions on
Department of Justice (“DOJ”) defines “conditional
the best use of its scarce detention space. It has
release” as “any combination of restrictions that are
contributed mightily to the crisis in the INS detention
deemed necessary to guarantee the defendant’s
system. At the same time, the INS has failed to
appearance at trial or the safety of the
manage the new mandatory detention regime in a
community.”140 Thus, as DOJ officials have informed
way that minimizes its damage.
CLINIC, “conditional release” could include home
Under the law, “mandatory detention” for those detention. In fact, at least one federal court has made
facing removal on criminal and national security this connection, ordering the INS to transfer a
grounds takes place “when the alien is released, “mandatory detainee” into the tethering program of
without regard to whether the alien is released on U.S. Pretrial Services.141 In effect, the court found
parole, supervised release, or probation, and without that “home detention” satisfied the mandates of
regard to whether the alien may be arrested or immigration detention. Unfortunately, the INS has
imprisoned again for the same offense.”135 By its failed to pursue successful alternative forms of
plain language, this provision would seem to apply detention, despite unprecedented pressure on its
only to persons released from criminal custody on or struggling system.
after October 9, 1998, when this provision went into
effect. Instead, the INS initially interpreted the
“released” language, triggering mandatory detention,
to refer to INS custody. Under this interpretation,
immigrants picked up by the INS on or after October
9, 1998, even if they had long before been released
from criminal custody, would have been subject to
mandatory detention. The fact that the INS advanced
30 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
federal judges. To begin such a proceeding, the INS
must first submit an application that establishes
probable cause that an individual is an “alien terrorist”
and that the use of the normal removal proceedings
would pose a risk to national security. The individual
is entitled only to an unclassified “summary” of the
secret evidence. Even if such a summary is not
provided, however, the proceedings can still go
forward, and the person will be forced to present a
defense without knowledge of the INS’s case.
The INS detains all non-citizens who are subject to
these provisions. As of this writing, more than 20
immigrants, mostly of Middle-Eastern descent, are
facing deportation on the basis of secret evidence.147
Photo Courtesy: INS
Jailed for 19 Months on Ex-Wife’s
3. Detention Based on Secret Undisclosed Allegations
Evidence Hany Kiareldeen, a 31-year-old Palestinian, was
detained for 19 months without being charged
It is a bedrock principle of our constitutional
with any crime. Rather, he was charged with
democracy that persons accused of a crime must be
being “removable” on the basis of secret
afforded the opportunity to examine and explain the evidence. Mr. Kiareldeen was arrested on March
evidence against them. Under our criminal justice 26, 1998 for overstaying his visitor’s visa. He had
system, it would be unthinkable to arrest, convict, and married a U.S. citizen who had petitioned for him
imprison a person based on secret evidence. Yet, our to become a permanent resident. Ordinarily this
immigration laws provide for the removal and filing would have allowed Mr. Kiareldeen to live
“administrative” detention of non-citizens — and work in the United States during the many
sanctions which can be every bit as severe as a years that such applications can take to process.
criminal sentence — based precisely on such evidence. Mr. Kiareldeen was employed as a manager of an
electronics store. However, the INS detained him
As it stands, an immigrant may be excluded from based on allegations by his ex-wife that in 1993
admission to the United States on national security he hosted a meeting at his home in Nutley, New
grounds if the INS or a consular officer has “reason to Jersey, which was attended by one of the World
believe” that he or she intends to engage in Trade Center bombing co-conspirators. Several
espionage or sabotage, has engaged in terrorist acquaintances, however, testified that Mr.
activity or intends to engage in terrorist activity.142 Kiareldeen was apolitical.
Immigrants “suspected” of being inadmissible for
espionage activities, terrorist activities, or other foreign In Mr. Kiareldeen’s case, the INS refused to
produce witnesses to support its allegations of
policy considerations can also be excluded.143
terrorism, even when ordered to do so by the IJ.
The law also allows the INS to remove an individual Upon reviewing the summary of the evidence,
from the United States based on secret evidence. In the federal district court found it “lacking in
general, persons in removal proceedings must be either detail or attribution to reliable sources
given a “reasonable opportunity to examine which would shore up its credibility. More
evidence” submitted by the INS. This right, however, important however, is the apparent conclusion
that even the government does not find its own
does not entitle them to examine “national security
allegations sufficiently serious to commence
information.”144 Once an individual is found to be
“removable,” the INS may use classified evidence to
deny his or her application to remain in the United Ultimately, in April 1999, an IJ who reviewed the
States.145 secret evidence concluded that Mr. Kiareldeen did
Finally, the laws allow for the use of an “Alien not live in Nutley at the time, and that the
Terrorist Removal Court” to remove suspected government had not shown that he was inad-
missible on national security grounds. The INS
terrorists from the United States through the use of
appealed and the BIA affirmed the IJ’s decision.
secret evidence.”146 The court is comprised of five
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 31
In October 1999, a federal court ordered the INS the judge found that Mr. Najjar had been subject
to release Mr. Kiareldeen. He was finally released to an “unfair” and “tainted” process, she
from detention on October 25, 1999.149 declined to order Mr. Najjar released on bond.154
His next bond hearing is scheduled for late
Arrested at Mosque - Three Years in August, 2000.155
Although federal courts have increasingly found the
Nasser Ahmed, an Egyptian immigrant, spent use of secret evidence unconstitutional,156 and there
more than three years in INS detention based on are efforts in Congress to pass legislation that would
secret evidence. For most of that time he was in repeal the law,157 this is scant comfort to the people
solitary confinement. Mr. Ahmed, a devout who remain detained and to their families who
Muslim, was arrested at his mosque in April struggle in their absence.
1996. The only evidence against him that the
INS disclosed was a one-sentence statement that
he belonged to an unnamed terrorist organi-
zation. His attorneys could not defend him
against such a vague allegation and Mr. Ahmed
was ordered deported.
When the attorneys filed a federal lawsuit, the
INS was forced to turn over some of its secret
evidence. The INS alleged that Mr. Ahmed had
sent a message to the international press from
Sheik Rahman, who was convicted of conspiring
to commit acts of terrorism in the United States.
His attorneys demonstrated that there was no
evidence Mr. Ahmed ever transmitted such a
message.150 Mr. Ahmed was released on a bond
in November 1999, but he said that he “still ha[s]
no idea who accused [him] or why they accused
[him].” Although he had worked as an electrical
engineer before he was detained, he lost his job
and will have to find new employment.151 The
INS is still seeking to deport him. Mr. Ahmed is
married and has three children.
Teacher Separated from Wife and
Daughters for Three Years
Mazen Al-Najjar, a Palestinian, is married and has
three U.S. citizen daughters. He worked as a
teacher and translator in Florida for 18 years
before the INS detained him based on secret
evidence. His attorneys believe that the secret Photo Courtesy: Alan Pogue
evidence showed that he worked at the same
university think-tank as prominent supporters of
the Palestinian cause. His wife has suffered
greatly during this time, and his daughters are The legislation imposing mandatory detention has
growing up without him.152 The children must caused immense — and unnecessary — suffering. But
talk to their father through glass; they cannot even in those areas where the INS retains the
touch him. The family has no money and is discretion to release individuals, it has failed to do so
being supported by Mr. Najjar’s sister and in a consistent or generous manner. It has been
brother-in-law. Mr. Najjar’s wife is ashamed to particularly remiss in its failure to explore alternatives
tell co-workers where her husband has been for
to detention for vulnerable detainees and others who,
almost three years, and she worries that the FBI
particularly with appropriate supervision, would
will get her fired from her job.153 In late May,
represent neither a flight risk or a danger to the
2000, a U.S. District Court Judge ruled that Mr.
Najjar must be given a new hearing. Although community. It has also failed to explore cost-effective,
32 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
alternative forms of detention for those subject to G Mandatory detention, which strips from the INS
mandatory detention. and IJs the ability to make custody determinations
based on the totality of a person’s situation,
Just as the problems in the INS detention system have should be eliminated in all but the most egregious
been exhaustively documented, a strong consensus has criminal and national security cases.
emerged among human rights and immigrant advocacy
groups on the steps necessary to fix the system. G The INS should aggressively pursue alternative
forms of detention for those subject to
G The INS detention system, long plagued by the mandatory detention, including home detention
inability of INS headquarters to enforce its policies through electronic monitoring and “tether”
at the local district level (much less in its contract programs.
detention facilities) must be centralized. Strict
accountability must be established for violations G All INS detention facilities — whether INS Service
of INS detention policies. Release decisions Processing Centers, federal prisons, for-profit
should not be subject to the whims, biases, and prisons, or local jails — should be subject to the
idiosyncracies of INS district directors. same minimum standards related to conditions of
confinement. These standards should be appro-
G Bona fide asylum-seekers, particularly those who priate to “civil” detainees, rather than to
establish a “credible fear” in the expedited prisoners serving criminal sentences. The model
removal process, should not be detained. The standards developed by the American Bar
INS should develop and implement uniform Association constitute a good starting point and
release policies for these cases. It should also should be uniformly applied.
develop supervised release and alternative-to-
detention programs for all asylum-seekers in its G The INS should adopt and implement an effective
custody. If asylum-seekers must be detained at system of oversight to assure the appropriate
all, this should only be on a short-term basis in treatment of detainees it has placed in for-profit
facilities appropriate to their unique needs and prisons and local jails. If INS contractors resist
vulnerabilities. Asylum-seekers should never be implementation of appropriate standards or
confined in prisons. rigorous oversight, their facilities should not be
G Children should never be detained in facilities for
juvenile offenders and should never be separated G Detention based on the use of secret evidence
from their parents. If necessary to detain them violates bedrock constitutional principles and
at all, they should be kept in shelter care facilities should never occur.
which offer programs tailored to their unique
vulnerabilities and developmental needs. The INS G The EOIR should follow up on its successful pilot
should significantly expand its shelter-care project and fund “legal rights” presentations for
facilities for immigrant families and unaccom- all persons in INS custody. Such presentations
panied minors. Every unaccompanied minor in would benefit detainees, increase the efficiency of
INS custody should be assigned a “special court proceedings, and reduce the burdens on the
guardian” to shepherd them through the immi- INS detention system. “Rights presentations”
gration process. The “best interests” of the child would be a humane and cost-effective feature of
should govern all placement decisions. a reformed detention system.
G The INS should abide by its own gender As the population of administrative detainees
guidelines and avoid detaining women who make continues to increase, the United States must decide if
gender-based asylum claims. it can afford – economically and morally – to lock up
persons who could be reunited with families and live
G The great majority of indefinite detainees should as productive members of society. At this point, the
be released within the 90 day statutory removal need for the system’s reform can scarcely be disputed.
period. While it may be necessary to detain For too long, the INS detention system has dishonored
certain non-citizens beyond 90 days, an absolute our heritage as a nation of immigrants.
time limit should be established for the release of
all detainees. Intensive reintegration and
supervised release programs, to include parole
revocation for those failing to meet the programs’
terms, should be provided for all indefinite
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 33
E N D N O T E S
1. Amnesty International, “Lost In The Labyrinth: Detention of 10. Women’s Commission for Refugee Women and Children, “A
Asylum-Seekers” (July 1999) [hereinafter “Lost in the Cry for Help: Chinese Women in INS Detention” (March
Labyrinth”]; Lawyers Committee for Human Rights, 1995).
“Refugees Behind Bars: The Imprisonment of Asylum
11. This seems an obvious point, but one blurred by the
Seekers in the Wake of the 1996 Immigration Act” (August
language used to describe the INS system For example,
1999) [hereinafter “Refugees Behind Bars”].
courts view removal proceedings as “civil” in nature, though
2. Human Rights Watch, “Slipping through the Cracks: their end (banishment to often dangerous countries) and
Unaccompanied Children Detained by the U.S. Immigration means (imprisonment) can be every bit as harsh as criminal
and Naturalization Service” (April 1997) [hereinafter sentences. The largest category of detainees, pejoratively
“Slipping through the Cracks”]. labelled “criminal aliens,” encompasses long-term
permanent residents who committed relatively minor trans-
3. Women’s Commission for Refugee Women and Children,
gressions, like shop-lifting, and long ago served whatever
“Liberty Denied: Women Seeking Asylum Imprisoned in the
criminal sentence they may have received. INS “processing”
United States” (April 1997) [hereinafter “Liberty Denied”].
or “detention” centers connote short-term custody, but hold
4. Kerwin, “Throwing Away the Key: Lifers in INS Custody,” 75 thousands of foreign-born persons for indefinite periods of
Interpreter Releases 649 (May 11, 1998); Morris, “INS time, often for years.
Criminal Alien Review Plan for Nonremovable Detainees,” 3
12. Pub L. No. 104-208, 110 Stat. 3009 (September 30, 1996).
Benders Immigration Bulletin 1098 (November 1, 1998);
Harr, “The Mariel Cubans: The Forgotten Lifers,” Migration 13. INA § 236(c)(1); 8 CFR § 236.1(c).
World, Vol XXVII, No. 5 (1999).
14. INA § 235(b)(1)(B)(ii)-(iii)(IV); 8 CFR § 235.3(b)(2)(iii) and
5. Kerwin and Wheeler, “The Detention Mandates of the 1996 (4)(ii).
Immigration Act: An Exercise in Overkill,” 75 Interpreter
15. INA § 235(b)(2)(A); 8 CFR § 235.3 (c).
Releases 1433 (October 19, 1998).
16. INA § 241(a)(1)(C)(2); 8 CFR § 241.3.
6. Human Rights Watch, “Locked Away: Immigration
Detainees in Jails in the United States” (September 1998) 17. Pub L. No. 104-132, 110 Stat. 1214 (April 24, 1996).
[hereinafter “Immigration Detainees in Jails”]; Florida
18. Kerwin, Acer, and Leopold, “The Detention of Noncitizens:
Immigrant Advocacy Center, Inc, “Florida County Jails: INS’s
An Overview of the Law, Its Implementation, and Legal
Secret Detention World” (November 1997).
Strategies”, 1999-2000 Immigration and Nationality Law
7. Kerwin, “Detention: Our Sad National Symbol,” In Defense Handbook, Volume II, Advanced Practice (American
of the Alien, Vol XX (1997) at 128-142. Immigration Lawyers’ Association 1999) at 34, 35-38.
8. Florida Immigrant Advocacy Center, Inc, “Cries for Help: 19. INA § 101(a)(43).
Medical Care at Krome Service Processing Center and in
20. US. Committee for Refugees, “World Refugee Survey 2000”
Florida’s County Jails” (December 1999) [hereinafter
(2000) at 2-4.
“Medical Care at Krome Service Processing Center and in
Florida’s County Jails”]. 21. United Nations’ Convention relating to the Status of
Refugees, opened for signature July 28, 1951, 19 U.S.T.
9. Florida Immigrant Advocacy Center, Inc, “Krome’s Invisible
6259, 189 U.N.T.S. 137; United Nations Protocol Relating to
Prisoners: Cycles of Abuse and Neglect” (July 1996);
the Status of Refugees, opened for signature January 31,
Immigration and Naturalization Service Assessment Team,
1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
“The Elizabeth, New Jersey Contract Detention Facility
Operated by ESMOR, Inc.,” (Interim Report) (July 1995) 22. Pub L. No. 96-212, 94 Stat. 103 (1980).
[hereinafter “The Elizabeth, New Jersey Contract Detention
23. Opened for signature Feb 4, 1985, S. TREATY DOC. NO.
Facility”]; American Civil Liberties Union, “Justice Detained:
100-20 (1988), 1465 U.N.T.S. 85.
Conditions at the Varick Street Immigration Detention
Center” (1993) [hereinafter “the Varick Street Immigration 24. The 1996 Immigration Act, § 604 (1996).
Detention Center”]. 25. Id.
34 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
26. 8 CFR § 208.4(a)(5) (1997). 40. Root, National Director, Appearance Assistance Program,
Vera Institute for Justice, “The Appearance Assistance
27. Musalo, Gibson, Fingert, and Taylor, “Expedited Removal
Program: An Alternative to Detention for Noncitizens in U.S.
Study: Report on the First Three Years of Implementation of
Immigration Removal Proceedings,” presentation at the 8th
Expedited Removal” (May 2000), Analysis of INS Office of
Migration Policy Forum (May 3, 2000).
Policy and Planning Data as of 11/24/99, Tables 1-26.
29. Musalo, Anker, and Taylor, “The Expedited Removal Study:
Report on the First Year of Implementation,” 75 Interpreter 43. Id.
Releases 973, 974 (July 17, 1998).
44. “The Varick Street Immigration Detention Center” at 15-16.
30. Federal Document Clearing House, Political Transcript
45. Interview with Natalie Audage, Asylum Network
(February 1, 2000).
Coordinator, Physicians for Human Rights (January, 2000).
46. “Lost in the Labyrinth” at 51.
32. Two asylum seekers recently filed a federal civil rights
47. McChesney, “The Mother Teresa of Immigration
lawsuit alleging that they suffered beatings and other
Detention,” America Magazine (April 24, 1999).
inhumane treatment at the Elizabeth, New Jersey detention
center. The abuse included beatings, being chained to a bed 48. Associated Press, “New York INS Detention Site Accused of
in a small cell for hours with no water, and isolation in an Safety Violations” (February 24, 2000).
unsanitary cell which “had its walls, floor, and doorway
49. Memorandum from Michael A Pearson, INS Executive
smeared with human feces and urine.” See, Llorente,
Associate Commissioner, Office of Field Operations, to INS
“Asylum Seekers Sue Elizabeth Jailers,” Bergen Record
Regional Directors, “INS Detention Guidelines” (October 7,
(February 25, 2000). See also, Llorente, “Asylum Seekers
Live in Jail-Like Conditions,” Bergen Record (April 11,
1999); Viglucci, “Inside Krome: Ending years of abuses is a 50. INA § 212(d)(5)(A)
daunting task,” Miami Herald (February 28, 1999).
51. See, Wheeler and McClenahan, “CLINIC Report #5 on
33. Articles 31 and 26 respectively, Vienna Convention on the Credible Fear/Expedited Removal,” 3 Bender’s Immigration
Law of Treaties, Nov. 1, 1969, 1155 U.N.T.S. 331. [here- Bulletin 417 (May 1, 1998); Wheeler and McClenahan,
inafter Vienna Convention]. The United States has not “CLINIC Reports on Implementation of Expedited Removal
ratified this convention, but the concepts described in these and Credible Fear Screening Process,” 2 Bender’s
two clauses have long been asserted by scholars as rising to Immigration Bulletin 949 (November 15, 1997); Wheeler
the level of customary international law. and Morris, “The Credible Fear/Expedited Removal
Process,” 2 Bender’s Immigration Bulletin 627 (August
34. United Nations’ Universal Declaration of Human Rights,
1997); Wheeler, “INS’s Implementation of Expedited
Article 14(1), GA. Res. 217A(III), U.N. GAOR, 3d. Sess., at
Removal: The Credible Fear Interview Process,” 2 Bender’s
71, U.N. Doc. A/810 (1948).
Immigration Bulletin 487 (June 15, 1997).
35. UNHCR Guidelines on Detention of Asylum Seekers (1995);
52. Kerwin and Wheeler, “The Detention Mandates of the 1996
“Detention Of Asylum Seekers And Refugees: The
Immigration Act: An Exercise in Overkill,” 75 Interpreter
Framework, The Problem And Recommended Practice,”
Releases 1433, 1439 (October 19, 1998).
Executive Committee, Standing Committee, United Nations
High Commissioner for Refugees, 15th Meeting, UN. Doc. 53. Id.
36. Id. at ¶ 1.
55. At a March 30, 2000 INS liaison meeting, the New Jersey
37. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) (expressing district director reported that in FY 1999, there were 995
deference to UNHCR’s interpretations of the Refugee detained cases at the Elizabeth Detention Center. The
Convention.). district director clarified that the vast majority were asylum-
seekers arriving at airports without proper documents, who
38. See, eg., “Lost in the Labyrinth.”
had passed their credible fear interviews. Of these, 90 were
39. The Vera Institute of Justice, “The Appearance Assistance granted parole for a release rate of approximately nine
Program: Attaining Compliance with Immigration Laws percent in 1999.
Through Community Supervision (1998).
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 35
56. Id; At a June 16, 1999 liaison meeting, the New York INS 76. See generally, “The Elizabeth, New Jersey Contract
district provided statistics that indicated that, since the Detention Facility”; “Immigration Detainees in Jails” at 60-
Queens Wackenhut detention facility had opened, 285 of 63.
the 1054 asylum seekers (27 percent) determined to have a
77. “The Elizabeth, New Jersey Contract Detention Facility” at
credible fear had been paroled by the the district office.
15; “The Varick Street Immigration Detention Center” at
57. “Lost in the Labyrinth” at 25. 13-14; Florida Immigrant Advocacy Center, Inc., “Krome
North Service Processing Center: Update on Conditions
(Draft)” (March 1996) at 12-14; Viglucci, “Investigation at
59. Statistics provided by the Executive Office for Immigration Krome: Officer Accused of Using Stun Gun,” Miami Herald
Review (December 13, 1999). (May 5, 1997); “Liberty Denied” at 15-17.
60. INA § 292; 8 USC § 1362. 78. The Associated Press, “Jury Convicts One Jail Guard,
Acquits Another in Detainee Abuse,” (April 28, 1998);
61. INS Office of General Counsel, “Funding of a Pilot Project
Smothers, “Three Jail Guards Guilty of Abusing
for the Representation of Aliens in Immigration
Immigrants,” New York Times (March 7, 1998).
Proceedings” (December 21, 1995). [hereinafter “No Cost
to the Government Memorandum”]. 79. Smothers, “Immigrants Tell of Mistreatment by New Jersey
Jail Guards,” New York Times (February 6, 1998).
62. 5 USC § 3106 (1996).
80. “The Elizabeth, New Jersey Contract Detention Facility” at 5.
63. “No Cost to the Government Memorandum”
81. Id. at 6. See also, “Liberty Denied” at 15 (“Detainees
reported physical and verbal abuse, frequent strip searches,
65. Hinken, Program Analysis Staff, Executive Office for and excessive use of prolonged isolation, as punishment for
Immigration Review, “Evaluation of the Rights minor infractions.”)
Presentations” (December 1999).
82. “Immigration Detainees in Jails” at 61-63.
66. According to the EOIR, in FY 99 53 percent of all immi-
83. 8 CFR § 208.6.
gration court cases were unrepresented at the time of
completion. Statistics available at 84. 8 CFR § 236.1(e).
85. Mr. B- requests that his country of origin not be printed. It
67. “The Florence Project Report,” Florence Immigrant and is not one of the countries whose consulates the United
Refugee Rights Project, Vol 3, Issue 1 (February 2000) at 1. States is required to notify pursuant to 8 CFR § 236.1(e).
68 . INA § 240(b)(2)(A)(iii). 86. See the UNHCR’s website at
69. “Medical Care at Krome Service Processing Center and in
Florida’s County Jails”; “Lost in the Labyrinth” at 64; 87. Ms. Kassindja’s story is poignantly told in Kassindja, “Do
“Immigration Detainees in Jails” at 56-63; “Liberty Denied” They Hear you When you Cry?” (Delacorte Press 1998).
at 19-23; “The Elizabeth, New Jersey Contract Detention
88. Matter of Kasinga, 21 I & N Dec. 357 (BIA 1996).
Facility” at 21-24; “The Varick Street Immigration Detention
Center” at 44-48. 89. Abankwah v. INS, 185 F.3d 18 (2nd Cir. 1999).
70. “Immigration Detainees in Jails” at 56. 90. Gilbert, “Family Violence and the Immigration and
Nationality Act,” Immigration Briefings (March 1998) at 15.
91. United Nations High Commissioner for Refugees, Handbook
72. Letter from Bill Lann Lee, Acting Assistant Attorney General,
on Procedures and Criteria for Determining Refugee Status
Civil Rights Division, to Mr. J. Milton Pittman, Chair of the
under the 1951 Convention and the 1967 Protocol Relating
Board of County Commissioners, Jackson County, Florida
to the Status of Refugees, paragraph 65 (1988).
(March 30, 2000).
92. Canadian Immigration and Refugee Board, “Guidelines on
73. “Lost in the Labyrinth” at 64.
Women Refugee Claimants Fearing Gender-Related
74. Id. Persecution” (March 9, 1993).
75. Viglucci, “Immigration Law Packs Detainees into Krome,” 93. Immigration and Naturalization Service, “Considerations for
Miami Herald (October 17, 1999). Asylum Officers Adjudicating Asylum Claims From Women”
(May 26, 1995).
36 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
94. Matter of R-A-, Int Dec. 3403 (BIA 1999). 113. Kerwin, “Throwing Away the Key: Lifers in INS Custody,”
75 Interpreter Releases 649 (May 11, 1998); Harr, “The
95. Immigration and Naturalization Service, “Guidelines for
Mariel Cubans: The Forgotten Lifers,” Migration World, Vol.
Children’s Asylum Claims” (December 10, 1998).
XXVII, No. 5 (1999).
96. Loose, “Most ‘Unaccompanied Minors’ Quickly Sent Back,”
114. Immigration and Naturalization Service, “Mariel Cuban
Washington Post (February 3, 2000).
Custody Report” (August 6, 1999).
97. Solomon, “Immigrant Minors,” Village Voice (February 1,
115. “Coven Statement.”
116. INA § 240(a).
98. Gonzalez, “2 Illegal Minors, 2 Tales,” Arizona Republic
(March 30, 2000). 117. INA § 241(a)(3).
99. Human Rights Watch, “United States: Detained and 118. 8 CFR § 2414(a) (1999).
Deprived of Rights: Children in the Custody of the U.S.
119. Under the Cuban Refugee Adjustment Act, Pub L. No. 89-
Immigration and Naturalization Service” (December 1998)
732, a national of Cuba can apply for permanent residence
in the United States one year after being inspected,
100. UNHCR Guidelines on Policies and Procedures in dealing admitted or paroled.
with Unaccompanied Children Seeking Asylum (1997).
120. Memorandum from Michael A Pearson, Executive Associate
101. Id. at ¶ 5.7. Commissioner, Office of Field Operations, Immigration and
Naturalization Service, to all Regional Directors, District
102. “Detention Of Asylum Seekers And Refugees: The
Directors, and Officers-in-Charge, “Interim Changes and
Framework, The Problem And Recommended Practice,”
Instructions for Conduct of Post-Order Custody Reviews,”
Executive Committee, Standing Committee, United Nations
HQOPS 50/14.6-C (August 6, 1999). See also Immigration
High Commissioner for Refugees, 15th Meeting, UN. Doc.
and Naturalization Service, “Instructions for Post-Order
EC/49/SC/CRP.13 (1999) at 26i.
Custody Review — Implementing Interim Changes and
103. See generally, Pinkerton, “Children Crossing Border Alone,” Instructions for Conduct of Post Order Custody Review”
Houston Chronicle (February 1, 2000). (October 18, 1999).
104. Pinkerton, “Kids held by INS trapped in limbo between 2 121. Letter from James J. Haggerty, Esq., CLINIC, to Kenneth
worlds,” Houston Chronicle (February 6, 2000). Elwood, INS Associate Commissioner for Enforcement, (June
105. Sullivan, “Jailed refugee girl in eye of political, legal storm,”
The Oregonian (December 11,1999); Sullivan, “A Teenage 122. 65 Fed Reg. 40540 (June 30, 2000).
Refugee from China talks to the Media,” The Oregonian
123. 8 CFR § 2414(a).
(December 14, 1999).
124. In Re: Indefinite Detention Cases, CV 98-674 TJH (JWJx),
Memorandum Opinion, US. C.D.C. (January 27, 2000).
107. Brune, “INS Housing Children in Jails; Few Places Left for
125. See generally, Kerwin, Acer, and Leopold, “The Detention of
Unaccompanied Kids,” Newsday (February 4, 2000).
Noncitizens: An Overview of the Law, Its Implementation,
108. Flores v. Reno, No. 85-4544-RJK (C.D. Cal. Aug. 12, 1996) and Legal Strategies,” 1999-2000 Immigration and
stipulated settlement agreement, setting forth the Juvenile Nationality Law Handbook, Volume II, Advanced Practice
Care Agreement). (American Immigration Lawyers’ Association 1999), at 58-
62; Kerwin, “Detention of Newcomers: Constitutional
109. Flores v. Reno at ¶ 12A.
Standards and New Legislation,” Part I, 96-11 Immigration
110. Brune, “INS Housing Children in Jails; Few Places Left for Briefings (November 1996).
Unaccompanied Kids,” Newsday (February 4, 2000); Id.
126. “Immigration Detainees in Jails.”
111. Hubler, “The Changing Face of Illegal Immigration is a
127. Harr, “The Mariel Cubans: The Forgotten Lifers,” Migration
Child’s,” Los Angeles Times (January 31, 2000).
World, Vol XXVII, No. 5 (1999).
112. Statistic provided by Phyllis Coven, senior INS official, at INS
128. Burgenthal, “International Human Rights in a Nutshell,”
- NGO meeting on February 17, 2000 in Washington, D.C.
(1988) at 33.
[hereinafter “Coven Statement”].
129. “Lost in the Labyrinth” at 70.
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 37
130. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987). 143. INA § 235(c).
131. A v. Australia, CCPR/C/59/D/560/1993 (30 April 1997). 144. INA § 240(b)(4)(B).
132. In adopting the ICCPR, the United States made reservations 145. Frenzen, “National Security and Procedural Fairness: Secret
that U.S. law would control in the event of any conflict with Evidence and the Immigration Laws,” 76 Interpreter
Article 9. However, it is unclear whether these reservations Releases 1677 (November 22, 1999).
are internationally valid in accordance with the law of
146. INA § 501, et seq.
treaties. See “Vienna Convention” at ¶¶ 17, 18 (“A State is
obliged to refrain from acts which would defeat the object 147. American Arab Anti-Discrimination Committee Press
and purpose of the treaty.”) Release, “Congressional Hearing Is Significant Step Forward
in Battle to End Secret Evidence” (February 10, 2000).
133. Kerwin, “Detention of Newcomers: Constitutional Standards
and New Legislation,” Part I, 96-11 Immigration Briefings 148. Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D.N.J. 1999).
(November 1996) at 14-15.
149. Press, “The Strange Case of Hany K.,” American Prospect
134. Matter of Adeniji, Int Dec. 3417 (BIA Nov. 3, 1999). (December 20, 1999).
135. INA § 236(c)(1). 150. Id.
136. See, eg., Aguilar v. Lewis, 50 F.Supp. 2d. 539 (E.D. Va. 151. Ramirez, “Freedom Begins with Elation and Prayer,” New
1999); Velasquez v. Reno, 37 F.Supp. 2d 663 (D.N.J. 1999); York Times (November 30, 1999).
Alwaday v. Beebe, 43 F.Supp. 2d 1130 (D. Or. 1999); Kuhali
152. Aschoff, “Ordered Deported, Men Jailed as Threats to
v. Ingham, No. 1:99-CV-00156A (W.D.N.Y. July 2, 1999).
National Security Cannot Find a Country That Will Have
137. Memorandum from Michael A. Pearson, Executive Associate Them,” St. Petersburg Times (June 7, 1999).
Commissioner for Field Operations, to INS Regional
153. Aschoff, “Two Years in the Dark,” St. Petersburg Times
Directors, “Field Guidelines for Applying Revised
(May 17, 1999).
Interpretation of Mandatory Custody Provision,” HQOPS
(DDP) 50/10 (July 12, 1999). 154. Merzer, “Judge: Secret evidence in jailing ‘tainted’,” Miami
Herald (June 1, 2000).
138. Department of Justice, Bureau of Justice Statistics,
“Compendium of Federal Justice Statistics, 1998” (May 155. “Judge denies ‘secret info’ detainment of Palestinian,”
2000) at 45. Associated Press (August 15, 2000).
139. Id. 156. Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D.N.J. 1999); Najjar
v. Reno, 97 F. Supp.2d 1329 (S.D. Fla. 2000).
140. Id. at 35.
157. Secret Evidence Repeal Act of 1999, HR. 2121 (introduced
141. Jorgensen v. INS, No. 99-70073 (S.D. MI. May 4, 1999).
on June 10, 1999).
142. INA § 212(a)(3).
38 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
G L O S S A R Y O F T E R M S
Aggravated Felony. A term that initially appeared in Code of Federal Regulations (CFR). A compilation of
the Anti-Drug Abuse Act of 1988 (Public Law No. the rules that govern the agencies of the Federal
100-690). At that time, the term included murder Government. The CFR is divided into 50 titles that
and certain drug and firearm trafficking crimes. Since represent broad areas subject to federal regulation.
1988, the definition of aggravated felony has been Title 8 pertains to immigration and nationality and is
expanded numerous times. Today, it encompasses a composed of all regulations issued by the INS.
wide range of crimes including crimes for which a
Convention Against Torture (CAT). An international
term of imprisonment of one year or more is imposed.
agreement protecting a person from return to a
If a one-year sentence is imposed but suspended (i.e.,
country where he or she is more likely than not to be
no jail time is served by the person who commits the
tortured. The Convention is formally known as the
crime), such crime is still considered an aggravated
United Nations Convention Against Torture and Other
felony. The definition appears at INA §101(a)(43).
Cruel, Inhumane, or Degrading Treatment or
Anti-Terrorism and Effective Death Penalty Act Punishment. There is no filing deadline for protection
(AEDPA) (Public Law No. 104-132). Enacted in 1996, and no one is barred from seeking protection under
a law that broadened crimes leading to removal, elim- the CAT. Protection under the CAT does not confer
inated relief from removal for many crimes, and the right to lawful permanent residence or the right to
attempted to limit judicial review. It served as a immigrate family members to the United States. In
precursor to the 1996 Illegal Immigration Reform and addition, a person granted protection under the CAT
Immigrant Responsibility Act (IIRIRA), which supple- may be removed to a country where he or she will not
mented many of its provisions and replaced others. face torture.
Asylee. A person who has been granted asylum in Credible Fear. The standard an asylum-seeker subject
the United States because he or she is unable or to expedited removal proceedings must meet in order
unwilling to return to his or her country of origin due to avoid immediate removal from the United States.
to past persecution or a well-founded fear of future The credibility of one’s statements and other facts
persecution. known to the immigration officer must demonstrate a
‘significant possibility’ that the person could establish
Asylum. A form of protection available to persons
eligibility for asylum. Persons who are determined to
physically present in the United States or at a port-of-
have a credible fear of persecution will not be
entry seeking admission to the United States, who
removed in the expedited removal process and can
fear returning to their native country due to past
seek political asylum in the United States.
persecution or a well-founded fear of future perse-
cution. The persecution must be based on one of five Deferral of Removal. The form of relief granted to
grounds: race, religion, nationality, membership in a persons who receive protection under the Convention
particular social group or political opinion. Except in Against Torture (CAT). Certain persons who would
limited circumstances, an application for asylum must likely face torture but who are ineligible for other
be filed within one year of an individual’s arrival in the types of relief from removal, may be granted deferral
United States. Asylum status is granted in the United of removal under the CAT. Deferral of removal may
States, after an application for asylum is approved be terminated if the individual is no longer likely to be
under INA §208(a). One year after being granted tortured in the country of removal. In addition,
political asylum, an asylee may apply for permanent persons granted deferral may be subject to INS
residence in the United States. detention.
Board of Immigration Appeals (BIA). The adminis- Executive Office for Immigration Review (EOIR). The
trative appeals court for decisions made by division within the Department of Justice responsible
Immigration Judges, INS District Directors and other for interpreting and administering federal immigration
immigration officials. laws and regulations. EOIR accomplishes its tasks
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 39
through immigration court proceedings, appellate Indefinite Detention. An undetermined period of INS
reviews, and administrative hearings of individual confinement faced by immigrants who are removable,
cases. The EOIR has three main divisions: the Board but whose countries of origin will not accept them.
of Immigration Appeals, the Office of the Chief Generally, the INS must remove an immigrant with a
Immigration Judge, and the Office of the Chief final order of removal within 90 days of the date of
Administrative Hearing Officer. issuance of that order. Natives from countries with
whom the U.S. government does not have diplomatic
Expedited Removal. A process that provides for the
relations or that will not cooperate in the repatriation
immediate removal from the United States of indi-
of their nationals, such as Cuba, Vietnam, China,
viduals who arrive without valid travel documents,
Cambodia, Laos, Iran, Iraq and Somalia, cannot be
such as a passport and visa. Persons removed in
removed. In addition, immigrants who are unable to
expedited removal proceedings are barred from re-
obtain travel documents cannot be removed. In such
entering the United States for a minimum of five
cases, prior to the conclusion of the 90-day period, a
years. In order to avoid immediate removal, asylum-
review of the individual’s continued detention must be
seekers who arrive without proper entry documents
conducted. This review is conducted by an INS
must demonstrate a credible fear of returning to their
District Director who has discretion to grant or deny
release. If not released from detention after a review,
Humanitarian Parole. A form of admission, granted indefinite detainees face prolonged detention for
by the Attorney General, for persons who are uncertain periods of time. Lawful permanent residents
otherwise ineligible to enter the United States. of the United States may be subject to indefinite
Humanitarian parole is only granted in cases involving detention.
urgent and compelling factors, such as medical emer-
Lawful Permanent Resident (LPR). A lawful
gencies, or in cases involving significant public benefit.
permanent resident is a foreign-born resident of the
This status is temporary and only issued to coincide
United States, who has the right to live and work in
with the duration of the relevant emergency or
the United States. Lawful permanent residents do not
humanitarian situation. There is a maximum time limit
have the right to vote and are subject to deportation if
of one year for a humanitarian parole. Under U.S.
they are convicted of certain crimes. Lawful
immigration law, the term “parole” carries no criminal
permanent residents are ‘green card’ holders.
Mandatory Detention. The detention of certain cate-
Illegal Immigration Reform and Immigrant
gories of immigrants without the possibility of release,
Responsibility Act (IIRIRA). (Public Law No. 104-
as mandated by the Anti-Terrorism and Effective
208). Enacted on September 30, 1996, a law that
Death Penalty Act (AEDPA) and the Illegal
dramatically altered U.S. immigration law. It created
Immigration Reform and Immigrant Responsibility Act
several new grounds of inadmissibility, restricted the
(IIRIRA). Persons subject to mandatory detention
ability to apply for asylum, changed inspections and
include those subject to expedited removal
removal processes, and altered provisions relating to
proceedings (including asylum seekers, until they
public benefits, document fraud and the detention of
establish that they have a “credible fear” of perse-
cution in their home country); persons who have final
Immigration and Nationality Act (INA). The statute orders of removal for (normally) 90 days; and many
encompassing U.S. immigration law. The INA is found immigrants convicted of crimes. However, immigrants
in the United States Code (U.S.C.), a complete convicted of crimes who completed their criminal
collection of federal laws. Title 8 of the U.S.C. pertains sentences prior to October 9, 1998 may be exempted
to immigration and nationality. from mandatory detention.
Inadmissible. The legal term applied to a person who Non-immigrant. A person holding a visa limited for a
is not eligible to enter the United States or adjust certain period of time and activity. Non- immigrant
status to lawful permanent residence in the United visas are available for tourism, business, temporary
States. A person who is inadmissible to the United work, religious work, farm work, educational and
States may not be issued an immigrant visa. Common other purposes. While the non-immigrant is residing
inadmissibility grounds include health-related in the United States, his or her activity must be
problems, previous criminal activity, the possibility of consistent with the provisions of his or her visa.
becoming a public charge, fraud, prior removal from
the United States, or previous unlawful presence in
the United States.
40 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.
Refugee. A person who has fled his or her country of Visa. The official document issued by the U.S.
origin because of past persecution or a well-founded Department of State at a U.S. Embassy or Consulate
fear of future persecution based on one of five abroad that grants an individual legal permission to
grounds: race, religion, nationality, political opinion, or enter the United States for a particular purpose.
a membership in a particular social group. Refugee
Voluntary Departure or Return. A form of relief from
status is granted outside the United States. The United
forcible removal that allows a person in removal
Nations High Commissioner for Refugees (UNHCR)
proceedings to depart the United States at his or her
interviews refugees outside their country of origin to
own expense. By agreeing to depart the United
determine eligibility for UNHCR protection. If UNHCR
States voluntarily, one avoids the consequences of a
decides a refugee cannot be safely returned to his or
formal order of removal, which normally prohibits a
her home country or cannot remain in a country of
person from re-entering the United States for ten
first asylum, he or she is referred by the UNHCR for
resettlement in another country. If a refugee is
referred to the United States for resettlement, an INS Withholding of Removal. A form of relief from
officer interviews the person outside the United States forcible removal available to persons who prove that it
in order to determine whether he or she may be is more likely than not that their life or freedom would
granted refugee status under U.S. law. If granted be threatened in their country of origin, as a result of
refugee status, the refugee may enter the United their race, religion, nationality, membership in a
States. One year after entry into the United States, a particular social group or political opinion. (INA §
refugee can apply for lawful permanent residence. 241(b)(3)). Like asylum, persons ineligible for with-
holding of removal include certain criminals, terrorists,
Removal Proceedings. The process during which an
and persecutors. Withholding of removal differs from
Immigration Judge determines whether a non-citizen
asylum in several respects. First, asylum is a discre-
may remain in the United States or must be removed.
tionary form of protection, but the U.S. government is
Prior to the passage of the Illegal Immigration Reform
bound to offer withholding of removal in accordance
and Immigrant Responsibility Act of 1996, these
with Article 33 of the United Nations 1951
proceedings were referred to as deportation or
Convention relating to the Status of Refugees.
Second, persons who seek asylum must make an
United Nations Convention on the Rights of the application within one year of arrival in the United
Child (CRC). Adopted by the United Nations General States, whereas there is no such deadline for with-
Assembly on November 20, 1989, an international holding of removal. Third, only persons in removal
human rights treaty that recognizes the vulnerability proceedings may seek withholding of removal.
of children and their need for special care and Fourth, unlike asylum, withholding of removal does
protection. The Convention identifies the following not serve as a step to lawful permanent residence nor
rights as fundamental to children: education, health does it prevent removal to a country where a person is
services, and legal assistance; protection from abuse, not at-risk. Finally, withholding of removal does not
neglect, and labor that threatens health or education; extend protection to derivative family members.
and special protections for children who are refugees,
abandoned, or without family. With 191 signatories,
the CRC is one of the most widely ratified human
rights treaties. The United States and Somalia are the
only United Nations members who have not ratified
United Nations Universal Declaration of Human
Rights. Adopted by the United Nations General
Assembly on December 10, 1948, a declaration that
defines equal rights as the foundation of freedom,
justice, and peace. The Declaration sets forth multiple
rights and freedoms, to which all persons, regardless
of race, sex, language, religion, political opinion or
nationality, are entitled. Such rights include the right
to: leave any country; to return to one’s own country;
to seek asylum in other countries; to remain free from
cruel, inhuman or degrading treatment, arbitrary
arrest, detention, and exile.
REPORT 4 ❘ THE NEEDLESS DETENTION OF IMMIGRANTS 41
C L I N I C ’ s B O A R D O F D I R E C T O R S
Most Reverend Thomas G. Wenski Most Reverend George V. Murry, S.J.
Auxiliary Bishop of Miami Bishop of St. Thomas
Most Reverend Armando X. Ochoa
Most Reverend Nicholas DiMarzio Bishop of El Paso
Bishop of Camden
Mr. Mark Franken
Reverend Monsignor William P. Fay Executive Director-USCC/MRS
Most Reverend John H. Ricard, S.S.J.
Mr. Edward L. Quinn Bishop of Pensacola-Tallahassee
Senior Vice President, The Enterprise Foundation
Sr. RayMonda DuVall
Most Reverend Stephen E. Blaire Executive Director-Catholic Charities, Diocese of San Diego
Bishop of Stockton
Mrs. Jane Golden Belford, Esq.
Most Reverend Emilio Allué
Mr. Austin T. Fragomen
Auxiliary Bishop of Boston
Fragomen, Del Rey & Bernsen, P.C
Most Reverend Michael P. Driscoll
Bishop of Boise
C L I N I C ’ s C O R P O R A T E O F F I C E R S
Most Reverend Thomas G. Wenski Most Reverend George V. Murry, S.J.
Auxiliary Bishop of Miami Bishop of St. Thomas
Most Reverend Stephen E. Blaire Donald M. Kerwin
Bishop of Stockton Chief Operating Officer-CLINIC
Vice President Secretary
To order the report, please contact:
Catholic Legal Immigration Network, Inc.
415 Michigan Avenue, NE
Washington, DC 20017
Ph: (202) 635-2556; http://www.cliniclegal.org
Cost of the report: $10.00
42 REPORT 4 ❘ CATHOLIC LEGAL IMMIGRATION NETWORK, INC.